The LegalTech 2012 Conference last week was a bit overwhelming for me as a first-time attendee.

As a knowledge management (KM) lawyer / law librarian, my continuing legal education opportunities tend to focus more on conferences related to KM or law libraries, such as the upcoming annual conference of the Canadian Association of Law Libraries / L'Association canadienne des bibliothèques de droit held in Toronto in May.

However, I think it was worthwhile attending LegalTech, although I might not need to attend every year. The main difference for me was the large number of technology vendors exhibiting or presenting their technology.

There were several themes I saw from the conference, including e-discovery and predictive coding, enterprise search, the use of iPads in legal practice (including mobile device management), and working in the cloud. Of these themes, e-discovery seemed to dominate.

Because my technology interests are currently not focused on e-discovery, I found many of the seminar sessions to be less relevant for me. That said, the keynote sessions were interesting and I enjoyed the session called iLove for the iPad: Tips, Tricks & Apps. From that session, I realized I am likely under-utilizing GoodReader for iPad, which – in addition to reading PDF files – also allows you to manage and transfer your files. A number of other PDF apps were mentioned, including PDF PROvider for iPad (which allows you to create PDF files) and PDF Expert (which lets you easily use PDF forms and signatures). The speakers also recommended the Atomic Web Browser as an alternative to the native iPad web browser since you have an option to have this web browser "mimic" your web browser of choice. I also likely taking notes in iWriter, mentioned by the speakers, since it has keyboard "arrows" allowing you to more accurately move the cursor on the screen). The other app I will likely explore is SoundNote, which records the speaker's voice and synchs up the recording with notes you are writing on the iPad. There is of course also the two high-end apps for lawyers, being TrialPad for iPad (which allows trial lawyers to easily use their iPad to present visual evidence to the court) and TranscriptPad for iPad (which allows you to easily review, tag, and annotate examination for discovery transcripts).

Ultimately, however, I found that perhaps the most useful thing to do was to meet with vendors and find out about their technology.

Two weeks ago federal prosecutors in the US shut down MegaUpload, one of the most popular file-sharing sites on the Internet. The site was a widely-used "digital locker" that stored files for millions of users world-wide. Some of those users, however, used the side for illegitimate purposes, turning the site into a hub of what the US prosecutors characterized as "massive worldwide online piracy."

While there's no question large quantities of illegal, pirated material was successfully removed with the MegaUpload takedown, thousands of innocent users have lost access to their files as a result of the takedown. The legality of the takedown has been questioned by lawyers from around the world, and the Electronic Frontier Foundation has promised to take legal action against the US Government if data is not returned to legitimate users promptly.

When considering the risks of storing data in the cloud, becoming collateral damage from an over-reaching takedown order is not something the typical consumer will - or should – have to contemplate. The US Government deserves strong pushback on this kind of action, as other file storage services, such as Dropbox, Box and others – could face the risk of being summarily shut down because a subset of its users choose to misbehave.

Who are these guys and why are they so happy? You're looking at Clio co-founders Rian Gauvreau on the left and Jack Newton (Slaw blogger) on the right; and they'll be smiling right now because they've just announced at Legal Tech that Clio has raised six million dollars in its Series B round of financing. From the Clio press release:

Clio will use this new funding to extend its product leadership position, aggressively developing new functionalities and supporting its growing customer base. In addition, the company aims to expand its footprint beyond the U.S. (which currently represents 95% of Clio’s sales) into other markets including Europe, Canada and Australia.

As the story in the Vancouver Sun explains,

Clio targets the majority of lawyers — those working solo or in small-scale firms — who want a reliable, convenient, low-cost method for managing their work flow. . . It is designed to streamline an array of tasks . . .

Our congratulations to Clio. It's great to see a company in the legal industry getting it right in these difficult times.

Apple may have done it yet again.

The iBooks system launched today puts a powerful but easy-to-use authoring system into the hands of anyone who wants it, presaging the publication of dynamic ebooks by the millions—texts that will, of course, range in quality from the wretched to the superb—and, I should add, from the free to the expensive. Apple, being Apple, has tied this software in pretty tightly to its own iPad: books made by iBooks Author are made to be viewed on an iPad and may only be sold on Apple's iTunes Store. (There is also an ability to export a book from Author into PDF or TXT format, though how much functionality survives the transition to PDF I haven't yet discovered.)

Apple's video ad for this system—"Apple in Education," because the system is aimed ostensibly at writers of textbooks — gives you a decent sense of what's possible, once you get past the somewhat saccharine and trite testimonials about teaching.

At first glance, which is all I've given it, iBook Author seems to offer a great deal of promise. It looks about as easy to use as Keynote or PowerPoint, though I imagine some of the more dynamic elements will take a bit of getting used to; and the business of designing for touch instead of mouse clicks will require practice.

I see a big future here for the use of iBook Author in law firms as a creator of teaching / reference tools, and, indeed, to make promotional and explanatory material for clients. Of course, everyone will need to have an iPad. Which is the plan.

The Electronic Frontier Foundation (EFF) offers a terrific suggestion for a New Year's resolution that you might actually have a decent chance of keeping: enabling full disk encryption on all of your computers.

Full disk encryption means that if your computer's hard drive falls into the wrong hands – because of theft, loss, or other causes – it remains unreadable until the correct "passphrase" is entered. If, for example, you lose your laptop full of sensitive client data while traveling, you can rest easy knowing that the data on your laptop is protected from prying eyes thanks to the digital vault full disk encryption provides.

Aside from loss and theft, full disk encryption offers the benefit of protecting your data from prying eyes at the U.S. border.

If you're not already using full disk encryption, you should be. The EFF offers suggestions for tools that can be used for full disk encryption in the full article on bringing in 2012 with full disk encryption.

The 2011 Apple in Law Offices Survey saw over 750 respondents provide insight on how Apple devices, ranging from the iPhone to the MacBook, are impacting the way they practice law.

iPad

Unsurprisingly, the iPad saw a huge jump in usage. In the 2010 survey, 26% of respondents used an iPad in their law office; in the 2011 survey, that figure jumped to 56%. The remaining 44% of lawyers without an iPad apparently don't plan on going without one for long: 71% of respondents were considering purchasing iPads for their law office in the next year:

Mobile

On the mobile front, iPhone and Android continued to surge in usage at the expense of BlackBerry and Palm:

The Cloud

Cloud-based applications work across iPhone, iPads, Macs and PCs alike, and the 2011 Apple in Law Offices Survey shows cloud-based applications are rapidly becoming an integral part of Apple-using law firms.

The top 5 cloud-based applications were:

• Dropbox (used by 26% of respondents)
• Clio (used by 22% of respondents)
• Google Apps (used by 16% of respondents)
• iCloud (used by 15% of respondents)
• Box.net (used by 5% of respondents)

Popular Desktop-based Applications

The top 5 desktop applications used by respondents were:

Why Lawyers Choose Apple

Why are lawyers continuing to “go Apple”? 46.5% of respondents said they chose Apple hardware over PC options because the technology was more reliable and secure. Usability was next on at 33.8%. Familiarity due to home use of Apple/Mac products was 9.8%, and surprisingly aesthetics and design came in fourth at only 3%.

The Apple in Law Offices Survey is co-sponsored by Clio and MILOfest.

The Bessemer Cloudscape

For all the talk about cloud computing and the security and ethics implications thereof, for many the concept remains a nebulous one. Earlier this month Bessemer Venture Partners, a leading venture capital firm, helped make the concept of cloud computing much more concrete by creating and publishing the Bessemer Cloudscape, a "visual to track the leading companies in this revolution."

Bessemer has invested heavily in cloud computing, and is in an excellent position to map the cloudscape. The firm sees cloud computing not only as one of the most important technology transitions to have ever occurred, but also as potential catalyst for a broader economic recovery:

Even as global markets struggle beneath the weight of unemployment, government paralysis, debt crises and Occupy Wall Street, one segment of the economy enjoys explosive growth with the promise of leading the recovery, one job at a time: cloud computing.

Cloud computing is no longer at the leading edge of the software world, but rather from the perspective of a growth investor, entrepreneur, or technology buyer, cloud computing IS the modern software industry. This multi-billion dollar, high-growth segment of technology now encompasses hundreds of exciting companies, covering every major segment of the software ecosystem.

The Bessemer Cloudscape is divided into three "layers":

Software-as-a-Service. This includes companies in virtually every segment of the market, which Bessemer divides into CRM, Marketing Demand Generation, Human Resources, Finance & Accounting, Content Management, Vertical (e.g. legal, healthcare), Enterprise Social Media, Marketing Analytics, Retail & E-Commerce, Collaboration, Business Intelligence and Ad Tech. The Software-as-a-Service layer of the Bessemer Cloudscape is targeted primary at corporate and consumer end-users. You'll recognize many names in this layer of the cloudscape, including Salesforce, LinkedIn, Box, Dropbox, Clio (my own company), Twitter, Google, and Facebook.

Platform-as-a-Service. This segment includes companies such as Heroku and New Relic. This segment of the cloud computing market is targeted primary at developers, which in many cases are using these Platform-as-a-Service companies to help deliver their own Software-as-a-Service products.

Infrastructure-as-a-Service. This is the segment of the cloud computing market that provides the foundation atop which Software-as-a-Service and Platform-as-a-Service companies build their offerings. Companies at this level of the cloud operate huge datacenters with hundreds of thousands of servers.

Love them or hate them, Apple devices such as the iPhone, iPad and MacBook are rapidly changing the way lawyers practice law. In just a few short years the technology lawyers use has shifted homogeny of PCs and BlackBerries to a diverse mix of PCs, Macs, iPads and iPhones. RIM, meanwhile, is imploding.

To try to keep a pulse on the rapidly shifting IT landscape, Clio, in cooperation with MILOfest, is holding the second annual Apple in Law Offices Survey - please take the survey. There's a chance to win an iPad 2 to boot!

As I did last year, I will publish the results of the survey here. This is the last week to participate in the Apple in Law Offices Survey.

I thought that Slaw readers might be interested in this observation by BLG partner, Norman Letalik, as a result of his recent exchange with Apple Canada's regional counsel. (The following quotation is from an email thread in a group to which I belong and is reproduced with Norm Letalik's permission.)

Note that I have now had a telephone conversation with Ms. Famulak, who is regional counsel for Apple Canada. She confirms that the information that is dictated on the Apple iPhone 4s using the Siri dictation feature is sent to servers that reside in the US and that Apple, its related companies and agents have access to the contents of what is dictated. She did not wish to opine on whether Apple's ability to access dictated client communications would breach legal privilege in Ontario or elsewhere. So, the best practice would be not to use the dictation feature on an iPhone 4s for any dictated information to which you intend legal privilege to attach. Note as well that Apple's dictation servers are located in the US, so the dictated information may also be scanned for national security purposes by the US Government pursuant to powers given to it under the Patriot Act.

In his request to Ms Famulak, Mr. Letalik noted that lawyers "likely did not read your 364 pp user agreement document carefully enough to understand the implications of the above terms and conditions."

The problem with privilege in this context is explained by Professor Adam Dodek, a new contributor on Slaw, in his February 2011 discussion paper for the Canadian Bar Association, "Solicitor-Client Privilege in Canada: Challenges for the 21st Century":

As the House of Lords has stated, the sine qua non of privilege is confidentiality: “Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement.” The CBA has issued “Guidelines for Practicing Ethically with New Information Technologies,” which declares that “Lawyers should exercise the same care to protect the confidentiality and privilege of electronic communications as is normally expected of them using any traditional form of communication.”
PDF, at p.48 (footnotes omitted)

Certain knowledge that a communication is open to others to read may ipso facto prevent the attachment of privilege.

There were cheers (ok, it was me) at a recent technology budget planning meeting at our office when it was announced that we are increasing WiFi throughout our space in another of our offices. In that office, up to now we have provided wifi for the area that includes anywhere a client would be. Our estimate for this is $4500. The WiFi we provide in our offices is secured with a password and uses a different internet connection than our network. Risk = reasonable.

There is an interesting article in the American Bar Associations YourABA December 2011 issue called Public Wi-Fi and the cost of "free". The article addresses privacy risks for lawyers in using public WiFi:

It's said that "free" often comes with a cost, and in the case of free public Wi-Fi, the cost may be your privacy. Imagine you're connected to the free Wi-Fi at your local coffee shop or at your hotel while on vacation, and you log into your favorite social network or web-based email account. Using simple and widely available tools, other users on that network may be able to "sniff" out the username and password you used to log in. They can then use those credentials to hijack your accounts and access your sensitive files. For lawyers handling confidential documents or communications, that scenario raises both privacy and professional responsibility concerns.

Because I do not have any client information (including in my email) stored on my iPad or laptop, I occasionally choose to connect to public WiFi. Most often, the public WiFi provided I use is in a coffee shop, or from a government. The City of Edmonton offers a service called Wireless Edmonton that reaches some parts of the Alberta Law Libraries Edmonton site. That public WiFi has even been used for research demonstration purposes during the Head Start program. Risk = reasonable.

The Wireless Edmonton provices some notes of caution on their FAQ page:

8. Can I be vulnerable to Viruses while using Wireless Edmonton?
Yes, It is recommended that customers install anti-virus/spyware software on your laptop as well as ensuring definitions are current.

9. Are the services for Wireless Edmonton secure?
No, the wireless network is not secure. Information sent from or to your laptop could be viewed by someone else using a wireless device and the appropriate software.
The City assumes no responsibility for the safety of equipment or for laptop configurations or device configurations, security, or data files resulting from connection to the wireless network.
For security purposes, it is recommended that your computer does not have file sharing active (for Windows – click on network settings in the Control Panel, then find and uncheck file and print sharing). Active file sharing allows other users on the network to access your files.

Public WiFi risks are not relevant to our firm WiFi expansion, and it is a capital expense. Why would a firm expand WiFi in the office? One big cheerful reason comes to mind – supporting WiFi enabled mobile device use (or even laptops) to maximize productivity for staff wherever in the office they happen to be. So yes, Field Readers – librarian support is available in the coffee room.

Does your law office have WiFi?

Dropbox has suffered through a number of security- and privacy-related incidents over the past year, which has left its frustrated but loyal userbase asking how they can continue using Dropbox while still properly securing their data.

SecretSync, a new startup, hopes to be the answer to that question. SecretSync encrypts sensitive data that you place in Dropbox so that, in the event Dropbox releases your files to law enforcement agencies or inadvertently makes your data public, you have nothing to worry about: your data will be completely inscrutable thanks to the client-side encryption used by SecretSync. Because your data is encrypted before it leaves your computer, client side encryption means you can safely store your data with a third party that you don't necessarily trust.

Unlike other client-side encryption solutions, such as TrueCrypt, SecretSync is designed from the ground up to work transparently with Dropbox. You don't need to tweak or customize Dropbox in any way – just install SecretSync, and any sensitive data you place in your new SecretSync folder will be transparently encrypted and synchronized with the SecretSync folders on your other computers.

Security does come at a price though, both in financial terms and in lost Dropbox functionality: the service is free for up to 2GB of data, but costs $39.99 – 59.99/year if your storage requirements are higher; also, files stored in SecretSync cannot be shared via Dropbox's web interface with other users.

The North Carolina State Bar has revisited its proposed Formal Ethics Opinion (FEO) on cloud computing and addressed many of the concerns the legal cloud computing community had previously expressed.

The main point of concern with the previous opinion was a list of minimum mandatory requirements that an attorney had to ensure was met by their cloud computing provider. In an open letter to the NC State Bar, the Legal Cloud Computing Association outlined its concerns with the proposed FEO; prominent bloggers such as Carolyn Elefant, Stephanie Kimbro, Erik Mazzone and Niki Black also outlined their concerns about the potential implications of the FEO as written.

The NC State Bar had published the proposed FEO for comments, and to their credit they listened carefully to the feedback they received and have re-issued an updated Proposed 2011 FEO 6 that addresses many of the concerns the LCCA and others had expressed relating to the previous draft.

The NC State Bar has eliminated the mandatory minimum requirement "checklist" from the opinion, rightly pointing out that such checklists are fraught with issues:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Instead, the proposed FEO opts for a more flexible set of due diligence requirements:

This opinion does not set forth specific security requirements because mandatory security measures would create a false sense of security in an environment where the risks are continually changing. Instead, due diligence and frequent and regular education are required.

Although a lawyer may use nonlawyers outside of the firm to assist in rendering legal services to clients, Rule 5.3(a) requires the lawyer to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the professional obligations of the lawyer. The extent of this obligation when using a SaaS vendor to store and manipulate confidential client information will depend upon the experience, stability, and reputation of the vendor. Given the rapidity with which computer technology changes, law firms are encouraged to consult periodically with professionals competent in the area of online security. Some recommended security measures are listed below.

• Inclusion in the SaaS vendor’s Terms of Service or Service Level Agreement, or in a separate agreement between the SaaS vendor and the lawyer or law firm, of an agreement on how the vendor will handle confidential client information in keeping with the lawyer’s professional responsibilities.

• If the lawyer terminates use of the SaaS product, the SaaS vendor goes out of business, or the service otherwise has a break in continuity, the law firm will have a method for retrieving the data, the data will be available in a non-proprietary format that the law firm can access, or the firm will have access to the vendor’s software or source code. The SaaS vendor is contractually required to return or destroy the hosted data promptly at the request of the law firm.

• Careful review of the terms of the law firm’s user or license agreement with the SaaS vendor including the security policy.

• Evaluation of the SaaS vendor’s (or any third party data hosting company’s) measures for safeguarding the security and confidentiality of stored data including, but not limited to, firewalls, encryption techniques, socket security features, and intrusion-detection systems.4

• Evaluation of the extent to which the SaaS vendor backs up hosted data.

The NC Bar's proposed FEO, like the ABA 20/20 Ethics Commission Proposals, makes the "reasonable care" standard the baseline to be adhered to, and affirms that a lawyer's duty to protect the confidentiality of client data "does not compel any particular mode of handling confidential information nor does it prohibit the employment of vendors whose services may involve the handling of documents or data containing client information."

The new proposed FEO strikes the right balance of providing guidance to the Bar's members without overly restricting technological freedom. The opinion, as written, can serve as a model for other Bars looking to provide increased clarity on the ethics of cloud computing to their membership.

Last week I gave a talk at Victor Medina's excellent MILOfest conference about How to Secure Your Mac Law Firm. In preparing for the talk, I developed the following set of best practices that any lawyer using Apple devices should employ to help protect their law firm's data:

Securing Your Desktops/Laptops

• Upgrade to OS X Lion and enable FileVault 2 for full disk encryption. Read more about FileVault 2 and Lion here.
• Enable the off-by-default firewall.
• Set your screen saver / lock screen to activate after 5 or fewer minutes of activity.
• Disable automatic login.
• Enable Find my Mac so you can geolocate your device and/or remotely wipe it if necessary.

Securing Your iPhone / iPad

• Activate the passcode-based lock screen
• Consider enabling complex passphrases for the lock screen
• Consider enabling automatic data wipe on your device is passphrase is entered 10 times incorrectly
• Enable Find my iPhone / Find my iPad so you can geolocate your device and/or remotely wipe it if necessary.

Securing The Cloud

• Employ a password manager such as 1Password to securely generate and manage your various web site passwords. More on the risks of weak passwords here.
• Consider using an encryption tool such as TrueCrypt to protect especially sensitive data you're storing in the cloud. Note that full disk encryption does not automatically encrypt data you are storing in the cloud.
• Dropbox continues to be wildly popular among lawyers despite their various security- and privacy-related failings. Consider using a tool such as SecretSync to encrypt and lock-down your especially sensitive Dropbox data.

This list isn't by any means exhaustive, but it provides a solid foundation for the security of your Mac, iPhone, iPad and cloud-based data. Let me know of any other tips you might have in the comments!

At yesterday's 5th Annual Federation of Asian Canadian Lawyers (FACL) Conference, Avvy Go and Julian Falconer spoke about mentorship and noted that large firms presumptively have resources that small and solo firms do not.

The future of legal practice management will invariably lie in technological solutions to strategic problems, especially for those with limited resources. I had a private tour earlier this week of the new LexisNexis product launched in Ontario, PCLaw Practice Suite, intended primarily for firms with 1 to 5 lawyers. The platform was developed after years of research and communication with small practitioners to assess and determine their needs.

The interface is clean, simple, customizable, and largely intuitive, and is set up under four tabs:

• My Practice — Daily schedule and deadlines, email administration, and key tasks.
• My Clients — Fast access to client matter details and status, as well as the ability to search and review client matters, related documents, and receivables and trust balances.
• My Business — Complete ability to automate time and fee billing and tracking, personal and firm key performance indicators, current budget, revenue to date, and accounts receivable and payable.
• Practice Guidance — Real-time access to legal and business information across general practice areas, including commentary, checklists and forms, case law, legislation, and professional news.

The practice tab provides an overview of dates and deadlines, and has an interface allowing interoperability with Microsoft Outlook calendars. This tab also has a "current awareness" module that imports RSS feeds. Our readers will find it interesting that one of the default RSS feeds already set up in the system is Slaw. The calendar incorporates a tickler, and will automatically update timelines for projects that require adjustment in an earlier stage of a matter.

The client tab has the ability to import documents in relation to a file, essentially providing an important tool for creating a paperless office. It also allows users to easily docket time for meetings, phone calls, and research, reducing the administrative burden of docketing considerably. This information can then be imported into invoices and updates to keep clients informed of the status of their file.

Client invoices aren't the only financial documents the system provides. The business tab assists in financial planning and budgeting, including breakdowns for different lawyers. Given the sensitivity of this type of information, it can be protected and provided on a restricted access basis to support staff or individuals who do not need this data.

But the most interesting part of this platform for me is the practice guidance tab. Small firms are often generalist in nature, especially when situated in smaller communities, and need to have competence in very different areas of law. In addition to practice management guidance and support, there is detailed information on business corporation, civil litigation, criminal law, employment law, family law, real estate, sale of a business, and wills and estates. The guidelines in these areas of law also link directly to QuickLaw, and to numerous forms within the practice suite that can be downloaded and completed with relative ease.

Go and Falconer's comments at FACL were pertinent because they claimed that minority lawyers are disproprtionately represented in discipline proceedings, largely due to lack of support within the bar. We are brilliant at funding the status quo, but not so good at creating the solutions needed to resolve the problem of proper supports for small and solo practitioners.

A commercial product like PCLaw Practice Suite might provide part of the technological solution to the lack of proper mentorship in the profession, and could go a long way to helping small and solo practitioners save time on administrative and research functions, allowing them to be more profitable. It's certainly worth looking into. And for those practitioners already accustomed with the old PClaw interface, there is an interface option to help with the transition.

LexisNexis is hosting 2-hour sessions discussing how PCLaw Practice Suite can support practice management on December 1, 2011 at 10am and at 2pm. The sessions have been approved for the Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Upper Canada, but is not accredited for Professionalism hours or for the New Member Requirement.

The press release from the launch is available here. More screenshots of the platform are available on my site here.

Even in 2011, I receive a surprisingly large number of documents that require me to print them, sign them, and fax them back to the sender. Ironically, most of these documents are sent to me as PDF attachments to e-mails.

We've banned physical fax machines at Clio, and instead use RingCentral for sending an receiving faxes. My workflow below helps me avoid having to print and scan documents that require completion and signing:

1. Download the PDF document
2. Open in Adobe Acrobat Professional
3. Use the "typewriter" tool to complete form fields
4. Open a separate PDF file where I've signed my name using the "pencil" tool
5. Copy and paste my signature onto the document
6. Save the completed document
7. Upload and fax the document via RingCentral

This beats having to deal with scanners and printers, but it's a laborious process.
HelloFax is a new service that helps make the dream of a paperless office a reality. Completing a form with HelloFax requires only a few steps:

1. Upload your document to HelloFax
2. Fill out fields and insert your signature using HelloFax's web interface
3. Enter fax number or e-mail address, click "send"

HelloFax helps take a huge amount of the pain out of completing PDF-based forms, and has thankfully helped move these "dumb" documents into the 21st century.

No doubt many libraries in our community have already heard the news: SydneyPLUS has just purchased a big piece of the Inmagic pie. This includes Inmagic’s DB/Text Library Suite of products: DB/TextWorks, DB/Text WebPublisher Pro, and Inmagic Genie.

According to Kathy Bryce via Andornot's blog:

The move will strengthen both SydneyPLUS and the new Inmagic division by bringing together complementary technologies to meet the needs of special librarians, while allowing Inmagic, Inc. to focus on new markets.

Inmagic, Inc. (the company) will retain its Presto technology and its related products PrestoKnowledgeNet, Presto AssociatioNet, and Presto IdeaNet.

It sounds like the two companies will be working more closely together. According to yesterday's press release:

Inmagic’s Presto for Social Libraries, which the companies will co-market and support under a strategic partnership, is an integration of Inmagic Genie, an integrated library system, with Inmagic Inc.’s Presto. Presto for Social Libraries is a Social Knowledge Network (SKN) application that integrates library workflow with knowledge-based content and the “wisdom of the community” to create a “Library 2.0” environment to support the research and business objectives of organizations.

Everyone is promising "business as usual" for the customers. Time will tell if this is the case, or if some customers take this opportunity to look for new alternatives. As a one-time customer of Inmagic, I watch with interest.

Last week the most severe outage in RIM's history crippled BlackBerry users' abilities to use e-mail, BBM, and the Internet in general for over three days.

The outage highlighted two deeply concerning issues with RIM. First, it is almost beyond comprehension how a single point of failure could bring RIM's global network down for this period of time. In the face of fierce competition from Apple and Google, RIM had been able to depend on real-time and reliable e-mail delivery as one of its key competitive differentiators. Not any more.

Worse, the company's response has come across as arrogant, aloof, and out-of-touch. The company did nothing to alert users or notify them of the status of their systems, and offered little in the way of updates in terms of root cause analysis or ETA to recovery. Perplexingly, the company doesn't run a system status service similar to Amazon's or Google's, leaving customers to find their own updates on status via news outlets and Twitter. As Queen’s University marketing professor John Pliniussen put it to the Globe and Mail last week, “It's sad that a world-class company with state-of-the-art technology has state-of-the-ark public relations.”

The RIM outage highlights the need for companies delivering services that demand "dial-tone" levels of reliability to have open, honest and timely communications during an outage and, importantly, to have a pre-built communication portal that will be used when such an outage occurs. As a customer of such services – whether it's provided by a company such as RIM, a cloud computing provider, or a utility company – ask as part of your due diligence process how the company notifies customers of outages or issues with its service. Ideally the company should have a public-facing website with current service status, along with a historical list of outages, durations and, hopefully, a post-mortem and root cause analysis. A great example of a company adopting such practices is Amazon with its Amazon Web Services Status site along with its post-mortem of the services' high profile April 2011 outage.

If the provider does not have such a site, it doesn't mean they don't have outages – everyone does – it just means they, like RIM, don't like talking about them.

The OIPC BC released Guidelines for Social Media Background Checks yesterday. The Guidelines were developed "to help organizations and public bodies navigate social media background checks and privacy laws."

The Guidelines outline the privacy risks associated with the use of social media to screen and monitor current and prospective employees, volunteers and candidates, including:

The collection of potentially inaccurate personal information;

The collection of too much or irrelevant personal information;

The inadvertent collection of third-party personal information; and

The overreliance on consent for the collection of personal information that may not be reasonable in the circumstances.

The Guidelines also provide additional information on what to consider and what to avoid when performing social media background checks.

This morning's Intapp Law Firm Risk Management Blog features a piece I recently published in Managing Partner Magazine in London entitled: "Managing Screens," which explores the tension between tightly controlling access to sensitive client (and firm) information and fostering internal sharing, which I characterize as: "the potential of exploiting collective professional knowledge."

"What has changed is that, in the past decade, so-called ethical screens have proliferated within law firms. Ethical screens are what used to be called Chinese walls: institutional mechanisms combined with technological safeguards and personal undertakings which ensure that confidential information is tightly protected."

"These are also used when clients or courts require objective safeguards to ensure that confidentiality will be strictly maintained on a need-to-know basis. For example, firms which are retained to act on hostile takeover bids will generally open files under code names and limit access to market moving information."

"Most large Canadian law firms have over 500 screens at any one time and, once erected, they are notoriously slow to get dismantled."

"Why does this matter for KM? Because once a client and its matters are screened off, the entire contents of those files are unavailable for future use. It is as if that knowledge doesn’t exist in the firm."
He argues several provocative implications of the growing confidentiality trend: "At a certain point, the number of screens will not merely make KM impossible but will make the firm less than a partnership and more like a group of solo lawyers or small firms working within a scattered archipelago of practice."

And I go on to provide several suggestions and approaches for "creatively managing the tension between KM and professionalism."

We mourn the passing of Steve Jobs, whose singular achievements are recounted by the HuffPost, MTV on his impact on music, Washington Post , Wired and the Daily Telegraph.

For the legal community, the perspective is slightly different. Jobs contributed to a host of patents reviewed here. Law firms toyed with Apple computers for a while in the 1980s, but currently the only firms that are using that platform tend to be IP and media law firms who are following their clients – the creative community has always loved Apple machines. And of course there are still bold pioneers in every firm who love their Apple computers and patch them into a network constructed on Microsoft code. As I look at my colleagues, I Phones are replacing BlackBerry devices as lawyers upgrade – the cool factor is tangible.

Everyone can learn from his meditation on death at Stanford shown below.

Jobs

I'm new to the cloud, just having opened a Dropbox account a couple of weeks ago. Still even to a newbie like me its clear that cloud computing on a larger scale can raise many legal issues about privacy and security. As it turns out the potential new law and policy issues are many. To address these issues the Centre for Innovation Law and Policy at the University of Toronto Faculty of Law is hosting an all-day conference on Friday October 14 entitled Cloudlaw: Law and Policy in the Cloud. The conference will consider the issues that may arise from the storing of large amounts of information virtually in the "cloud" as opposed to locally on your own organization's servers.

Speakers include the Information and Privacy Commissioner of Ontario Dr. Ann Cavoukian who will deliver the keynote address, as well as speakers from academia, government, corporations, and legal practice. They will discuss the jurisdictional challenges that the cloud presents as well as privacy and security, competition law and IP issues raised by the cloud. Details and registration information can be found on the conference website.

And if you like me need a good description of what the "cloud" is, Wesley Ng has a nice overview in his recent SLAW posting.

Last week the Law Society of Upper Canada issued Guidelines for Law Office Searches.

Such searches are rare but when they do occur, lawyers must realize that they have certain duties and obligations to protect solicitor-client privilege, which is a fundamental right belonging to the client. The Supreme Court of Canada has held that the Criminal Code procedures governing law office searches were unconstitutional. So when a search occurs, lawyers are advised to consult the Guidelines, which are intended to assist them in protecting the common law solicitor-client privilege of their clients and which also provide best practices and general advice for dealing with particular situations.

Here are the highlights:

WHEN THE POLICE ARRIVE AT A LAW OFFICE
Inspect the search warrant
• Ensure that the law office is identified as the place to be searched,
• Ensure that the date the Police have attended at the law office is the date authorized,
• Ensure that the documents sought are identified,
• Ensure that the offence under investigation is identified,
• Ensure that the requisite judicial officer has signed and dated it,
• If there are deficiencies on the face of the warrant, point them out to the Police and assert that the Police should obtain a proper warrant, and
Do not obstruct the Police, even if you believe the search warrant or its manner of execution to be invalid.
Assert Privilege over all documents to be seized under the search warrant.
Is a Referee required?
Where the Lawyer may be a target of the investigation, if the Lawyer is in a conflict of interest and where there is no Lawyer present, this should be raised with the Police and either the Police or the Lawyer should make an application to the Court for the appointment of a Referee.
Is an Independent Forensic Computer Examiner required?
If the documents sought are on a computer or other electronic device/media, the assistance of a Court appointed Independent Forensic Computer Examiner may be required.
Do I need a Lawyer?
You are the only one who can answer that question. However, you can contact a Lawyer and you may find it helpful to speak with a Lawyer.
Lawyers should contact the Law Society at 416-947-3300 and ask to speak to Senior Counsel to
the Director of Professional Regulation for assistance when faced with a law office search

Next steps to be taken by the Referee or the non-conflicted Lawyer
• Keep notes of participants, contacts, happenings and timing,
• Identify and assert privilege with respect to all documents,
• Offer to, or if requested by the Police, locate the documents and, where practicable, make and keep copies of them,
• Comply with the terms of the search warrant and give only what is demanded by the warrant,
• Retain copies of all documents, to the extent that it is possible, time permitting,
• Offer to, or if requested by the Police, seal the documents in packages marked for identification and
initialed by you and the Police; taking care to ensure that the Police do not see the documents or any client
names,
• Ensure that the sealed packages are delivered to the custody of the Court or an independent third party as designated by the Court in accordance with the Court order, and
• Make reasonable efforts to contact the Clients whose documents are subject to seizure to advise what is happening and advise that they may wish to obtain independent legal advice.
The Search Warrant has been executed – Next Steps
If necessary initiate or respond to applications before the Court that may include applications for,
• An order to unseal and access the sealed packages,
• The appointment of a Referee or an Independent Forensic Computer Examiner,
• The determination of objections to the search warrant or its manner of execution,
• The determination of issues of solicitor-client privilege,
• Further searches such as a comprehensive electronic search of an electronic device/media or a forensic image, and
• Direction with respect to the notification of the Clients of the search for and seizure of solicitor-client
privileged documents.

The law is well described here and the entire report to Paul Schabas' committee is here.

Medical data is one of the most sensitive types of data and, like lawyers, some doctors have reservations about storing confidential client data "in the cloud." The security of storing Electronic Health Records and related data on-premise is perceived by many doctors to be more secure than cloud-based alternatives.

This thinking is challenged by a US Department of Health and Human Services (HHS) study that assesses the root cause of significant data breaches involving health information. The study finds the top causes of breaches of the Health Insurance Portability and Accountability Act (HIPAA) to be:

• Physical theft of devices / servers
• Accidental loss of devices
• Unauthorized access to devices

The causes listed above accounted for nearly 80% of the 221 HIPAA breaches assessed in the survey. The top 5 violations identified by the HHS were as follows:

• Health Net. 1,900,000 individuals affected. Cause: portable disk drive stolen from Health Net’s California office.
• NYC Health & Hospitals Corporation. 1,700,000 individuals affected. Cause: hard drives storing health record information stolen from the back of a van.
• AvMed. 1,220,000 individuals affected. Cause: laptops stolen from the corporate office in Gainsville.
• Blue Cross Blue Shield of Tennessee. 1,023,209 individuals affected. Cause: hard drives storing health record information were stolen from an IT closet.
• South Shore Hospital. 800,000 individuals affected. Disk drives were lost when being transported to a contractor for destruction.

All of these breaches can be attributed to the use of on-premise systems. If these organizations were leveraging the cloud, it would eliminate the possibility of physical theft, and eliminate the need to transport sensitive data via USB drives, laptops, and other devices that are easily lost or stolen.

The data from this study highlights the tremendous level of risk associated with storing data locally. While storing data in the cloud does theoretically introduce new risks, these risks appear to be dwarfed by the difficulty of attempting to secure on-premise data.

While Dropbox continues to lead the way in easy-to-use cloud-based file synchronization, recent security- and privacy-related lapses have left many Dropbox-loving lawyers looking for alternatives. To date there has been a lack of viable options, but AeroFS, a new startup, is looking to become the Dropbox for security-conscious users.

AeroFS offers the same ease-of-use that characterizes Dropbox, but adds a new spin to how file synchronization works: rather than storing your files in the "cloud", as is the case with Dropbox, AeroFS synchronizes files directly between your devices via an encrypted channel. This "peer-to-peer" synchronization technique means your data never has to be stored on a third-party server – if you access a file stored on your AeroFS account on, say, your iPhone, your data will be fetched from one of your connected AeroFS devices – likely your laptop or desktop computer.

AeroFS's approach has several benefits. First, you maintain direct control of sensitive data, as your files are never stored on AeroFS's servers. Second, you can synchronize as many files as you like (even extremely large files) without having to pay additional fees – because no cloud storage is used, AeroFS's costs remain the same whether you're synchronizing 100MB or 100GB of data.

A pure peer-to-peer file synchronization approach does come with some downsides: because files are synchronized directly between your devices, you need to leave at least one connected device powered on at all times if you want to be able to synchronize files on demand. Also, because your files are not stored in the cloud, you don't benefit from the backup and redundancy of having files stored in the cloud.

AeroFS addresses this downside by allowing you to store select files in the AeroFS cloud, thus delivering all the benefits of Dropbox's cloud-based file synchronization while allowing you to keep especially sensitive files stored locally on your own devices.

Back in May, David Whelan wrote an excellent column on the pressures law firms experience because of consumer technology products titled The Core of Legal Technology. This month, the Law Society Gazette (UK) contained an article titled Technology in law firms transformed by 'consumerisation'. Today I found a clever way to get the alternate spelling into the keywords of this article. Clever keyword content is not what I want to write about though.

I want to share three ideas to help law firm technology departments cope with the issue of consumer (and by this I mean Partner) demand for the latest gadget. These ideas are meant to help you respond to the demands or requests or pleas that come to you.

1. The latest gadget is probably a productivity tool

Just because it is a consumer product doesn't mean that it isn't a productivity tool. For example, my firm spends less money on hard copies of the Alberta Rules of Court because many lawyers access a nice current, useable, free pdf version on their personal mobile devices. I am certain that no one told our IT department that those personal iPads were going to be used to write textbooks, reference Rules, or look at images at a discovery. Just because a tool is marketed like a toy doesn't mean that it won't be used like a tool in your law firm.

2. Embrace change

People don't look for technology solutions because they have nothing better to do. We are in a reality where technology tools are what 40 somethings (who are supposed to be planning a seminar) talk about when they have breakfast (and thanks for the tips ladies). Sharing best practices can happen within Google+, even though to you it is just another new social media time waster. Certainly one of your jobs is to remind people about policies and security if that comes up, but policies and security are not the automatic 'no' to innovation that is driven by Your clients – the lawyers and staff you work with.

3. Document your processes

I know that connecting the first iPad to Outlook was a big pain in your tush. As long as you made a note of the steps, the second, third, and 30th times were a breeze. No one wants your job, they won't outsource you and just use your procedures manual. If you can document your work and use that documentation to create standard, stable methods, you will have great success. Your credibility will be firmly established when you say "let me get my notes on that, I have done it before so I know the method". Even better is "my group has a standard method for that".

As the Dalai Lama tweeted: "Taking care of our neighbors’ interests is essentially taking care of our own future."

I look forward to comments.

E-mail's days as a communication medium that offers a "reasonable expectation of privacy" may be numbered.

The ABA's newly issued Formal Opinion 11-459 revisits the topic of e-mail security, and offers the following concluding paragraph:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

While Formal Opinion 11-459 correctly identifies the wide variety of security- and privacy-related issues with e-mail, this most recent opinion represents a major departure from the ABA's previous position on e-mail security as outlined in Formal Opinion 99-143, which states:

The Committee believes that e-mail communications, including those sent unencrypted over the Internet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy

For years lawyers have felt e-mail offered a "reasonable expectation of privacy" due to Formal Opinion 99-143, but Formal Opinion 11-459 seems to indicate the ABA is advocating a shift away from e-mail as a communication method.

This shift in thinking is a pragmatic one: in the last decade there has been an explosion in tools available for secure attorney-client messaging. Cloud-based collaboration and communication services offer a much higher degree of security and, in light of more secure alternatives being available, why should lawyers and their clients accept the additional risk of using unencrypted e-mail?

Read more perspectives on Formal Opinion 11-459 from Niki Black and Steph Kimbro.

Paul Venezia of InfoWorld asks why the fax machine refuses to die. In what is a bit of a rant rather than a reasoned analysis, Venezia advises:

Consider what a fax machine actually is: a little device with a sheet feeder, a terrible scanning element, and an ancient modem. Most faxes run at 14,400bps. That's just over 1KB per second — and people are still using faxes to send 52 poorly scanned pages of some contract to one another. Over analog phone lines. Sometimes while paying long-distance charges! The mind boggles.

A few reasons come to mind as to why some people still fax. One is that despite an economy that whips up lust for the latest tech gadget, we have a strong conservative bent when it comes to technology (as with many other aspects of our lives). After all, we're still using internal combustion engines in our automobiles and talking on telephones connected together with wires. And fax machines can claim a long pedigree — and a Scotsman at the source. Evidently one Alexander Bain in 1843 patented:

improvements in producing and regulating electric currents and improvements in timepieces and in electric printing and signal telegraphs

Another reason, one said to be favoured by lawyers and doctors, has to do with the dubious understanding that a faxed document, particularly a signed faxed document, has greater authenticity in the eyes of a court than an emailed document.

A discussion on MetaFilter raises a number of other reasons why we still cling to faxes: it's easier to fax than to scan and email an attachment; phone lines are more secure than the internet; using phone lines may be cheaper in some circumstances; and fax machines kick out a certificate of delivery.

So, do you still fax? And if so, why?

Bloomberg announced this morning that it was acquiring the legal publisher, BNA for $990,000,000.

Bloomberg will acquire all 25,116,830 outstanding shares of BNA for $39.50 per share in cash for a total purchase price of approximately $990 million.

It is a key development in Bloomberg's strategy to challenge Thomson West and Reed Elsevier in the lucrative legal information market.

In Bloomberg's history, this is only the third acquisition – they bought Businessweek and New Energy Finance in 2009. Bloomberg's growth has all been internal and organic to date.

Normally, prices aren't given so this one is revealing – the $990 million price reflects premium multiples paid (P/Revenue of 2.9x, EV/EBITDA of 14.5x, and P/E of 32.6x on a LTM basis).

So why? Essentially this is about access to a new customer base, but even more than that, it adds content to Bloomberg Legal, when content is what it will need to take on the established incumbents. BNA's customer base fits nicely with Bloomberg's.

The Company counts amongst its customers the250 largest law firms, 98% of the top 100 accounting firms, 97% of Fortune 500 companies, and a substantial number of large and mid-sized law firms. In law firms alone, BNA serves over 5,500 firms with an estimated 205,000 attorneys. BNA reported revenue of $331 million in 2010. BNA is completely employee-owned, and is headquartered in Arlington, Virginia, where most of its 1,465 employees are located.

Here is what the FAQs said:

Together, Bloomberg and BNA will be a unique combination of premium content, deep subject matter expertise, proprietary data and world-class technological capabilities to provide distinctive products and solutions for professionals and decision makers in law, government, business and finance.

This acquisition would immediately strengthen Bloomberg’s offerings in the legal information market by complementing Bloomberg Law – the only legal research system that fully integrates primary research, dockets, company information and proprietary news – with BNA's trusted legal, tax and regulatory content.

The acquisition would significantly grow Bloomberg’s presence in the Washington, DC area through its multiple operating units, Bloomberg News, Bloomberg Government, Bloomberg Law and BNA — which would work together to provide unparalleled coverage and analysis of U.S. policy and regulatory issues for customers.

BNA will benefit from Bloomberg’s technology and data expertise as well as the significant analytical and news reporting resources of the company, including Bloomberg Briefs, Bloomberg Industries and Bloomberg News, among others.

And a legal publisher founded by David Lawrence in 1929 will be no more.

According to the Google Docs Blog today, they're introducing the ability to control access to documents at the page level:

Using page-level permissions, you can make some pages private for certain users while keeping other pages public for everyone to see. For instance, let’s say you have a Google Site that you’ve shared with your team and your manager. You can allow your team to see one set of pages, let your manager edit another set of pages, and keep yet another set of pages private for only you.

As is usually the case with innovations, they're not available right away on Google Apps.

This may appeal to some lawyers who make use of Google Docs, given the confidential nature of aspects of their working material and the various strategic considerations that can arise.

Good logo for the Docs Blog, by the way. I think it's new.

These are notes are from a panel presentation organized by the ABA Section on Labor and Employment Law at the American Bar Association 2011 conference in Toronto on Sunday, August 7, 2011. Panelists included Douglas E. Dexter, Farella Braun & Martell LLP, San Francisco; Roy L. Heenan, Heenan Blaikie LLP, Montreal; Mauricio Paez, Jones Day, New York; and Lauren Schwartzreich, Outten & Golden LLP, New York. The moderator was Cynthia E. Nance, Professor of Law, University of Arkansas, Fayetteville, Arkansas. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. This is the final instalment of my notes from ABA 2011. I welcome your comments and follow-up thoughts! 

Lauren Schwartzreich – Employee access to social media

Information on social networking sites (people's individual profiles) may not be accurate: could have been hacked, friends could be playing jokes, could be tongue-in-cheek. So, take care not to take everything at face value when looking at profiles of potential employees. There is a great potential for discrimination claims, such as claims under Americans With Disabilities Act and others. Not all information might be taken at face value.

Monitoring of employees' Internet use:

• What are the circumstances under which monitoring was put into place? Is it retaliation? Pretext for discrimination?
• Looking at the content of Internet use and communication: Was it protected speech under the National Labor Relations Act? Was it employee/lawyer communication and therefore protected?
• With respect to technology used for monitoring: did the employer surreptitiously use sign-on information to social networking site? Did the employer coerce a fellow staff member to reveal password?

With social media use in an employment setting, there are potential claims on both sides.

Douglas Dexter – Employer Response to Social Media and the Workplace

Social media is definitely a concern that employers have. Many HR departments are not using the Internet at all to research candidates' backgrounds. As the technology develops for the employees for maintaining Facebook sites and can detect who is looking at their sites, there will be more and more litigation. Individuals who are being searched are not currently generally cognizant that of being searched.

Each of us is capable of publishing information "on a gargantuan scale" and this is often done without a lot of thought. Those of us with Facebook pages, are on Twitter, have LinkedIn pages: can you tell who are your friends and when they joined? Are people from your workplace following you? A lot of people forget who they are publishing to. From the employers' perspective, this is the most troubling reason to monitor what is happening. People make remarks in a very public way about the workplace, co-workers and supervisors, competitors and products. If there is a critique of your companies' products, employees feel it is their obligation and right to respond resulting in thousands of "spokespeople" on the Internet. That is where we are getting our consumer information. Do we want our employees to be in that role?

• What about our customers? If someone happens to have a bad experience with a call centre, they complain to their Facebook page to untold number of followers.
• Are employees having conversations on the Internet that would have previously taken place in the lunchroom?
• What about confidential business information – someone tweeting "you wouldn't believe what we are going to do next!"

Part of the problem is the instantaneousness of it, they are not thinking, they are just doing. Employers are investigating.

What kind of postings have led to employment actions?

• "drunken pirate" photo prevented a teaching candidate from getting a job
• explicit photos have led to suspension
• posts disparaging the boss (with the boss as a friend!)

Things get complicated because sites are both personal and professional. There is an expectation in many jobs that people should be involved in social media. Lines start to become blurred.

A social media policy should provide guidelines for employees who use social media for work purposes:

• requiring management review and approval before launching any internet initiative
• how much review of each posting?
• even this most fundamental safety net is controversial
• before any images of company facilities, events or employees
• that would disclose confidential information of business, customers, co-workers
• respectful of customers, employer, co-workers
• put the company in the best light

Policy for personal use should include:

• use guidelines
• engagement should occur through personal account
• should not appear to represent the Employer
• should not use Employer's trademarks
• should make it clear the views are yours alone
• should not disparage business affiliates, competitors or customers
• should not contain confidential information about facilities, business plans, customers
• should not reproduce company material without permission
• should comply company with general company policies
• with respect to images: any photos in Employer facilities may only be used if approved; ask permission from colleagues before including them
• with respect to "Friends": conduct yourself with co-workers as you would in the office. What about prohibiting friending of subordinates? When two people are equals and one gets promoted, should that person run out and un-friend?
• additional provisions: For publicly traded companies: "Please be aware that we may request that you temporarily confine your website or weblog commentary to topics unrelated to the company…if we believe this is necessary or advisable to ensure compliance with securities regulations or other laws." (there may be information black-out periods)
• consult with HR if any questions
• not intended to preclude employees from exercising their rights

Mauricio Paez – Social media and labor relations

Don't make a virtue out of being a social media luddite. If a case comes across your desk, you want to know if you have a claim under the NLRA.

You need to be able to:

• explain it to a board agent
• explain it to an administrative law judge
• explain this in a court of appeals

What types of issues has the National Labor Relations Board (NLRB) addressed?

• rules governing the use of social media
• where you have a unionized workforce, the employer has to negotiate with the union before putting a policy related to social media in place
• whether violates the National Labor Relations Act
• social media policy that could result in discipline will become part of the bargaining
• if you don't go to the union first, you could have a claim against you
• is the policy compliant under the NLRA?
• need decisions under the NLRA to interpret the law

Clarifications:

• this applies to any private sector employer, not just unionized
• "collective" in this case could be one employee speaking to a group or even just one person on social media – considered "concerted activity"

Roy Heenan – Social media and employment law in Canada

Canada has a different direction, to follow the OECD guidelines on privacy protection. If you follow the guidelines and certain principles, you can get data collected in Europe transferred over to your company.

We have a privacy act which gives individual access to information, fairness on the behalf of government, and a Privacy Commissioner appointed by the government. She is very active in policing the privacy area. She is assisted by PIPEDA (Personal Information Protection and Electronic Documents Act ) which is based largely on the OECD guidelines. It limits use, disclosure and retention of information, and companies have to have safeguards in data collection. This is the Federal government, but some provinces have similar legislation and rules.

There is a list of protections and also a list of expectations visited on employers. Has the employer a proper policy? Is it communicated to the employees? If there hasn't been a policy or carefully communicated, disciplined employees may be reinstated into their jobs.

According to the Privacy Commissioner on privacy and social networking:

• it is a different animal from email; employers should and must produce a whole policy to deal with social media and it should be communicated to employees.
• Privacy communication to employees
• anything posted on sites may be accessed by current and potential employers, competitors, etc. Anything posted to social networking sites may be used by unintended audiences.
• employees should be aware of untended disclosure
• disclosure could be damaging to employer.

May 2011 – 2010 Annual Report from Privacy Commissioner

• online tracking and cloud computing
• shifting expectations of privacy – people want to communicate but still expect privacy, which is contradictory
• companies must develop standards of data collection since will still be accountable

Vancouver riots (and tweets by Brock Anton)

• a lot of shaming came out of this; friends were outing friends on Facebook
• public told companies that if they kept these people on as employees, they would boycott the stores
• the consequence has been dramatic
• the next day the cleanup was done by getting volunteers through social media

Need to consider to what extend is there really an expectation of privacy? In Canada we are going through this reflection; with technology there are ways of having surveillance, and there is a danger of collecting too much private information as a result.

Q&A

Q: Do you think there is now an ethical obligation to be informed about social media? Also, how to obtain and preserve social media evidence?

Schwartzreich: If you are involved in litigation, it is becoming increasingly important. Content on social media sites is most likely going to be relevant. Trend of cases has indicated a broader, early trigger to when the need to preserve evidence arises. You are going to be responsible for clients' social media, what is discoverable content. You have to figure out how you are going to preserve it.

Facebook tool: download your information tool [see screen shots below]. You can download a good portion of your clients' Facebook content, but some content is excluded. You need to figure out what is going to be relevant.

(click on images to enlarge)

Twitter: "Tweetake" program for backing up tweets.

Free tools may, however, be limited in scope. Courts will become frequently frustrated with counsel if they don't look for this content early. You don't want courts to require turning over of clients' login information during discovery.

Also, how are you going to get Internet information admitted at trial? Courts are not that forgiving at authenticating information from the Internet.

Paez: 12 Delaware Law Review 2011 article – August 2nd [see: Ethical Risks Arising From Lawyers’ Use of (and Refusal to Use) Social Media by Margaret M. DiBianca, p. 179 (pdf)] cited New York Law Journal – 60% of domestic relations lawyers collect information through the Internet. Varies by area of law. Also, to make an argument you have to understand how a Facebook page works. Your 14 year old who has 1000 friends is going to be in the workforce sooner rather than later, you better understand this.

Heenan: www.accessprivacy.com – 30 page paper from May 2011 – not just an obligation for lawyers, but a potential opportunity.

Q (from counsel to large corporation): He does not understand why social media is not blocked inside organizations, and just unblock those who need to do marketing research.

Nance: It is your job to promote the entity and it is not just those in PR e.g. if she is on a panel at the ABA conference, she wants to tweet to drive people to her organization.

Dexter: There was a lot of effort put into blocking sites early on. As a practical matter, you no longer need your computer to access social networking sites, so this is no longer going to work. Wasting time in the workplace as a selective enforcement issue is almost insurmountable. The technology is way ahead.

Paez: You are never going to be able to stop employees from posting Facebook updates. Don't put a policy in place you cannot enforce.

Comment from the audience: If you see posts from a juror, you have an ethical obligation to report it to the court.

First to BC where a committee of the Law Society of British Columbia, under the chairmanship of Gavin Hume, has produced the best and most thoughtful piece on how to practice ethically and effectively using cloud computing. We've referred in the past to helpful work done by the Bar Association in North Carolina and the ABA's 20/20 Commission – see Jack Newton's posts from May and July, as well as Connie's and Omar's take on last week's ABA discussion.

At the Canadian Lawyer, David Paul has a good tip sheet of practical advice on the intelligent use of Google in the practice of law – well worth a close look. Even Slaw readers might pick up a tip or two.

Back to the cloud – to my way of thinking, Gavin's committee has really done us all a service with the clarity and practicality of its analysis.

RECOMMENDATIONS
Recommendation 1: The Law Society should adopt and publish the attached due diligence guidelines for lawyers using third party electronic data storage and processing (see Appendix 1).

Recommendation 2: In order to ensure the Law Society’s regulatory process keeps pace with evolutions in data storage and processing technology, and to ensure the audit process remains robust, the Act and Rules Subcommittee should draft rules that capture the following concepts:

1. Rule 3-68(0.1) should include reference to Rule 3-59 in order to facilitate the Trust Regulation Department auditing and investigation of accounting records;

2. Rule 3-68 should be amended to remove reference to the “chief place of practice” requirement with respect to electronic records, and instead should require that electronic records be made available at the time of request in a format acceptable to the Law Society (the Law Society should publish guidelines as to what the Trust Regulation Department requires as an acceptable format);

3. The general retention period in Rule 3-68(1) should be 10 years from the final accounting transaction;

4. There should be a general rule regarding records in electronic form that gives the Law Society the discretion to accept copies of those electronic records in paper or another form;

5. There should be a general rule regarding records in electronic form that the Law Society has the discretion to require the lawyer to provide the meta data associated with those records;

6. There should be a general rule that requires lawyers to ensure their electronic records are capable of meeting the prevailing electronic discovery standards of a British Columbia superior court;

7. The Act and Rules Subcommittee should determine how to incorporate the following trust rule requirements:

(a) If monthly reconciliations are prepared and stored electronically, the reconciliation must show the date it was completed. Each of the monthly reconciliations must be available with appropriate back up documentation and not overwritten by the system.

(b) If billing records are stored electronically, they must include the creation date as well as any modification dates.

(c) All accounting records must be printable on demand in a comprehensible format (or exported to acceptable electronic format (ie. PDF)) and available for at least 10 years from the final accounting transaction. If the member scans all his supporting documentation such as 3rd party documents like bank statements the full version meaning all the pages front and back even if there it is blank page.

(d) A sufficient “audit trail” must be available and printable on demand in a comprehensible format (this should be a requirement of all accounting software whether it’s in the cloud or a stand-alone program such as ESILAW or PCLAW etc.).

(e) Audit trail transaction reports must be complete, showing all postings into the software with specifically assigned transactions that correspond chronologically with dates etc.

(f) Cash receipts must always be retained in hard copy.

(g) Ability of system to provide creation dates, what changes were made, and how often the documents (i.e. Word, Excel and/or Adobe) were changed. Ensuring that metadata information is not lost when stored on a cloud.

(h) Ability for LSBC to have view only access & printing access to all items stored on cloud (I.e. emails, documents, accounting records) when required. This does not derogate from any rule that allows the Law Society to copy a record or have that record provided on request. The purpose is to allow for a forensic investigation that does not alter the underlying record.

8. There should be a rule that recognizes, in circumstances where the Law Society has had to copy electronic records held by a third party, the Law Society may rely on the copies as best evidence and the onus is on the lawyer to provide a forensic copy of those records if the lawyer wishes to dispute the quality of the evidence.

9. The Act and Rules Subcommittee should consider, as part of future revisions to the Legal Profession Act, amending s. 37 to permit orders for copying or duplication of records, as an alternative to “seizing” records.

Recommendation 3: For the purposes of interpreting Rule 3-68(4), and subject to the other recommendations in this report, if a lawyer ensures through contractual safeguards that custody or control of his or her records does not pass to a third party, the lawyer can use a third party for the storage or processing of those records. If the lawyer is unable to access those records and provide them on demand during an audit or Law Society investigation, however, the lawyer may be found to have lost custody or control of the records, which may lead to disciplinary consequences.

Recommendation 4: In circumstances where the Law Society Rules require a lawyer to either provide the Law Society the lawyer’s records or make copies of the records available to the Law Society, and the lawyer either refuses to comply, or is unable to comply by virtue of having used a service provider that does not make the records available in a timely fashion, the lawyer should be suspended until such time as the lawyer complies with the disclosure requirements under the Law Society Rules. The Act and Rules Subcommittee should consider whether this requires creating a new administrative suspension rule, or proceeding by way of Rule 3-7.1. In circumstances where the lawyer is suspended, the Law Society should consider seeking a court order for a custodianship in order to protect the public and ensure the suspended lawyer’s clients continue to be served.

Recommendation 5: The Law Society should encourage the CBA BC Branch and CLE BC to include as part of future courses on cloud computing (or similar technology), information about the best practices and Law Society Rules.

Recommendation 6: The Ethics Committee should review its ethics opinions regarding the use of third party service providers and update them to address the concerns arising from the use of cloud computing, or similar technology.

Recommendation 7: Law Schools and PLTC should teach students that lawyers’ have an obligation to ensure their use of technology is consistent with their professional obligations.

Recommendation 8: The Law Society’s Trust Regulation Department, and the Professional Conduct and Investigation Department, when dealing with investigations involving a lawyer who uses cloud computing, should identify circumstances in which the approach proposed in this report is failing to protect the public interest, in the event modifications to the policy and rules is necessary for the Law Society to fulfill its public interest mandate. Because technology will continue to develop, and standards will emerge, it is important to ensure the Law Society keeps pace with these changes, and staff will play an important role in keeping the Benchers apprised of the potential need for amendments to the policies and rules recommended in this report.

Recommendation 9: The Practice Advice group should modify their resources to reflect the recommendations in this report. This may involve creating checklists to better assist lawyers.

Recommendation 10: Because cloud computing is an emerging technology, the Law Society should ascertain whether any lawyers who use cloud computing are willing to have the Trust Assurance Department determine whether their system meets the present requirements, and the investigators determine whether the system meets the requirement for a 4-43 investigation. This would not be for the purpose of endorsing a
particular system. It would be for the purpose of identifying any concerns to ensure the Law Society’s auditing program can address cloud computing.

Recommendation 11: Because cloud computing stores records in a manner where the Law Society may not be able to make forensic copies of hard drives, or segregate irrelevant personal information that is stored in the cloud, Rule 4-43 should be amended to make it clear that the process for protecting personal information during investigations is subject to the lawyer using a record keeping system that supports such a process. If lawyers choose to use systems that do not support that process, they do so at their own risk, and the Law Society may end up having to collect or access personal information that is irrelevant to an investigation.

And a very practical due diligence check list for those considering venturing onto the cloud:

PART A: GENERAL DUE DILIGENCE CHECKLIST Lawyers must ensure that the service provider and technology they use support the lawyer’s professional obligations, including compliance with the Law Society’s regulatory processes. This may include using contractual language to ensure the service provider will assist the lawyer in complying with Law Society investigations.
Lawyers are strongly encouraged to read the service provider’s terms of service, service level agreement, privacy policy and security policy. Lawyers must ensure the contract of service adequately addresses concerns regarding protecting clients’ rights and allowing the lawyer to fulfill professional obligations. Ensure the contract provides meaningful remedies. At a minimum consideration should be given to the following:
o Lawyers must take steps to ensure the confidentiality and privilege of their clients’ information is protected. Clear contractual language should be used to accomplish this objective.
o Lawyers should try to ascertain where the data is stored/hosted. Consider the political and legal risks associated with data storage in foreign jurisdictions. The lawyer must consider whether he or she can comply with British Columbian and Federal laws, such as laws governing the collection of personal information, when using third party service providers (see Part B).
o Who owns the data? Confidentiality and privilege are rights that lie with the client. Lawyers must ensure ownership of their clients’ information does not pass to the service provider or a third party.
o What happens if the service provider goes out of business or has their servers seized or destroyed?
o On what terms can the service provider cut off the lawyer’s access to the records?
o Will the lawyer have continuous access to the source code and software to retrieve records in a comprehensible form? Consider whether there is a source code escrow agreement to facilitate this.
o How easily can the lawyer migrate data to another provider, or back to desktop applications?
o Who has access to the data and for what purposes?
o What procedural and substantive laws govern the services? What are the implications of this?
o Does the service provider archive data for the retention lifecycle the lawyer requires?
o Are there mechanisms to ensure data that is to be destroyed has been destroyed?
o What are the lawyer’s remedies for the service provider’s non-compliance with the terms of service, service level agreement, privacy policy or security policy?
o Ensure the service provider supports electronic discovery and forensic investigation. A lawyer may need to comply with regulatory investigations, and litigation disclosure, in a timely manner. It is essential that the services allow the lawyer to meet these obligations. What is the service provider’s reputation? This essentially requires the lawyer to assess the business risk of entrusting records to the service provider. Lawyers should seek out top quality service providers. What is the service provider’s business structure? Lawyers must understand what sort of entity they are contracting with as this affects risk. Does the service provider sell its customer information or otherwise try and commoditize the data stored on its servers? Lawyers should strive to keep abreast of changes in technology that might affect the initial assessment of whether a service is acceptable. Services, and service providers, may become more or less acceptable in light of technological and business changes. What security measures does the service provider use to protect data, and is there a means to audit the effectiveness of these measures? A lawyer should compare the cloud services with existing and alternative services to best determine whether the services are appropriate. If using a service provider puts the lawyer off-side a legal obligation, the lawyer should not use the service. For example, there may be legislative requirements for how certain information is stored/secured. Lawyers should establish a record management system, and document their decisions with respect to choosing a cloud provider. Documenting due diligence decisions may provide important evidence if something goes wrong down the road. Consider the potential benefits of a private cloud for mission critical and sensitive data, along with information that may need to be stored within the jurisdiction.
With respect to certain trust records, the Trust Regulation Department at the Law Society of British Columbia recommends the following as best practices:
1. All bank reconciliations (for all trust and general bank accounts) should be printed the same date it was completed and stored in hard copy;
2. A full and complete trust ledger should be printed in hard copy at the close of each client file matter and stored in hard copy;
3. A master billings file should always be maintained in hard copy;
4. Have a disaster recovery plan in case the cloud provider shuts down. Regularly back up all files and records in possession of the member. Store backup files in a fire safe, safety deposit box;
5. All Members should print off or export to electronic file (i.e. pdf) all accounting records required by Division 7 Rules on an ongoing basis and store locally;
6. If client files are stored electronically, all key documents supporting transactions and key events on the file must be printable on demand in a comprehensible format (or exported to acceptable electronic format (ie PDF) and available for at least 10 years from the date of the final accounting transaction.
The Lawyers Insurance Fund notes that there may be data breaches and other risks in using a particularly technology, including cloud computing, that may lead to losses by lawyers and clients. These are not risks to which the professional liability insurance policy responds, so lawyers will want to consider the risks and how best to protect themselves as part of their due diligence. Steps that might be taken include: A lawyer should obtain informed client consent for the use of the services; A lawyer should require the service provider to indemnify the lawyer for any claims the lawyer faces as a result of using the service; and A lawyer should consider buying insurance on the commercial market to cover risks such as data breaches.

The past couple of weeks have offered an amazing ringside view of an unusually public and acrimonious debate over software patents.

First, This American Life aired When Patents Attack, a fantastic expose of Intellectual Ventures, a patent holding company owned by Microsoft's one-time CTO Nathan Myhrvold. The episode leads listeners to the seemingly inevitable conclusion that companies like Intellectual Ventures are at the root of all that's wrong with the US patent system. It's a must-listen for anyone involved in, or merely interested in, intellectual property law.

Then, last week, after losing out on a huge bidding war for Nortel's patent portfolio, Google published a blog post lamenting the current state of the US patent system, and accused its competitors of conspiring against Google and leveraging a broken and ineffective patent system to their advantage. The post has since snowballed into a public mud-slinging match with Microsoft, with each side accusing the other of anti-competitive behaviour.

Many are calling for change with the US patent system, particularly with software patents, and these developments underscore how desperately that change is needed.

Here's the promised post on the iPad apps recommended, or mentioned warmly, by Tom Mighell and Nerino Petro during the ABA session on Thursday that discussed the use of tablet computers in the practice of law. Some of the those identified as "free" also have a beefed up version offered for sale. As I'm sure you'll understand, there are literally thousands upon thousands of iOS apps now, and it was only possible for the panel to discuss a very few in the time allotted. And, as I'm sure you'll also understand, all kudos goes to the two expert panelists and any misdescription is strictly my fault.

Dropbox [free] – This is everyone's favourite storage and sync app. It just works, much like the iPad itself. All of your files are available anywhere online. And it works with a wide range of other iPad apps, which is important because one of the features of the iPad is the… difficulty of getting documents off it. With Dropbox, you simply save to that site, and then access it from your desktop or otherwise as needed. Security is a concern for lawyers, when documents are in the cloud, as they are on Dropbox. So it's recommended that you find a client-side program (check out SecretSync, BoxCrypter, or TrueCrypt) that will encrypt sensitive or confidential documents created on your desktop or laptop machines. (So far as I know, there's no app to encrypt documents created on your iPad.)

GoodReader [$4.99] – This app reads almost any document you're likely to use, and it's as close to a document manager as you can get on the iPad. (Remember: you're not going to have access to Microsoft Word or Excell on the iPad.) It also has powerful annotation features.

Documents to Go [$9/99] – On the iPad the ability to read documents doesn't necessarily imply the abilty to edit them. If you want an app that can create and edit Word or Excel documents, for example, you'll probably want Documents to Go

Note Taker HD [$4.99] – This (and a great many other apps) let you write cursively on the iPad, using your finger or, more likely, a special conductive stylus. A useful feature of this app is that you can write "large" in one area of the screen and have your writing appear helpfully "shrunken" in the body of your document. 

SignMyPad [$3.99] – This is one of the apps that aims more at the professional / legal market, allowing you to load a PDF document, add text, date, and have someone sign it right on the iPad. 

MindMeister [free] – This is the iPad version of the popular mind mapping tool. You can export your work in a variety of formats.

Atomic Web Browser [$0.99] – iPad comes with Safari as your built-in browser, which is certainly no bad thing. However, this browser is faster and makes use of tabbed browsing, along with a host of other useful features. (As you'll know, the iPad doesn't accommodate Flash. If you must watch Flash videos, you'll want to examine Skyfire Web Browser [$2.99]. 

The Deponent App [$9.99] – This is a deposition question and exhibit outline application for lawyers. You'll find 150 stock deposition questions built in and organized by category; and you can add your own. You can also load exhibits into the app.

idocument REVIEW [$29.99] – This app allows you to tag, annotate and redact documents, useful for document discovery.

iJuror [$9.99] – If you're a trial lawyer working with juries, you might find this helpful. It lets you add information and thoughts about potential jurors, drag and drop to choose or dismiss jurors, and add notes as the trial progresses.

TrialPad [$89.99] – This is a major trial presentation app offering the most useful aspects of the much more expensive full-blown trial presentation apps for laptops. 

AppAdvice [$1.99] – Finally, this little app will keep you abreast of iPad app releases and offers you comparison reviews so you can make sensible choices in the very crowded iOS apps field. Along with this you might add the AppShopper [free] which lets you run a wish list and notifies you of impending sales.

If you're a Mac-using lawyer, Apple's recently released OS X Lion has a new feature that single-handedly makes the upgrade worth the $29 price of admission.

FileVault 2 enables whole-disk encryption for OS X Lion computers with just a few clicks of the mouse. Whole disk encryption ensures the contents of your drive are only readable when you provide a valid username / password combination to the operating system. This means your entire computer's hard drive will be encrypted, and thus unreadable, should it fall into the wrong hands.

I consider whole disk encryption a best practice for all lawyers, regardless of whether they happen to be using a desktop or laptop computer. Laptops, however, are at especially high risk of loss and/or theft, and should therefore always employ whole disk encryption.

Matthew Bookspan has an excellent write-up on how to enable FileVault 2 on Mac OS X Lion over on the MacLawyer blog. If you're a Windows user, consider using the free, open-source TrueCrypt software for whole disk encryption.

Back in May I wrote about two sets of proposals that may impact the adoption of cloud computing technology among lawyers.

The first set of proposals comes from the ABA Commission on Ethics 20/20, which has issued an initial set of draft proposals addressing lawyers’ confidentiality-related obligations when using technology. The second set of proposals comes from the North Carolina State Bar in the form of in Proposed 2011 Formal Ethics Opinion 6 – Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property.

Last week the comment periods for both proposals closed, and a number of individuals and organizations have published open responses to either the ABA, the NC State Bar or, in some cases, both. Let's look at those responses and see if there are some common threads (if I have missed any relevant posts, please let me know in the comments):

ABA Commission on Ethics 20/20

• They Listened, they Really Listened by Carolyn Elefant, a frequent advocate of solos and small firms and author of the popular MyShingle blog. In her post, Carolyn applauds the Commission for incorporating the feedback she provided in response to the Issues Paper the Commission published. Carolyn went to great lengths to generate interest in the Commission's efforts among solo and small firm lawyers – even going as far as to roll out a portal to act as a hub of information and communication – and her efforts clearly paid off.
• Maintaining Confidentiality in the Information Age by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. Niki describes the proposed new rule 1.6c) and its accompanying comment as a "broadly framed, elastic standard that assists attorneys in making careful choices about the technologies that best fit their individual practices."
• Response to Commission on Ethics 20/20 Proposals by the Legal Cloud Computing Association, a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). In its open letter, the LCCA expresses its full support for the proposals made by the ABA Commission on Ethics 20/20, and thanks the ABA for contemplating the feedback provided in response to the original Issues Paper published by the Commission.

The general consensus among these authors is the ABA Commission on Ethics 20/20 has done a commendable job of incorporating feedback from lawyers and vendors alike, and has arrived at a set of proposals that are sufficiently flexible to accommodate a broad range of technologies, cloud-based and on-premise alike, in the practice of law.

North Carolina State Bar Proposed 2011FEO6

• Proposed NC Bar Opinion Limits Cloud Computing by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. In her post Niki cites a number of onerous requirements proposed by the FEO, and concludes the opinion in its current form is likely to severely impede the adoption of cloud computing among NC lawyers.
• Ethics Of Cloud Computing In NC – Take 2, by Erik Mazzone, a legal technology expert , Practice Management Advisor, and Director of the Center for Practice Management at the North Carolina Bar Association. Erik concludes the proposed FEO's requirements of cloud computing providers, in particular the requirement that data be stored only within a specified geographic region, is unlikely to be met by cloud computing providers. While legal-specific cloud applications may contemplate rewriting their legal agreements to accomodate NC, non-legal-specific providers, such as Google, Dropbox, Evernote and others, are almost certain to ignore whatever requirements the NC State Bar requests of them. The end result, Erik concludes, is that NC-based lawyers will "be prohibited from using some of the best, most secure, most reliable, most cost-effective software available."
• Response to North Carolina State Bar Proposed 2011FEO6 by the Legal Cloud Computing Association,a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). The LCCA concludes the onerous requirements of the Proposed FEO, detailed in full in the LCCA’s response to the NC State Bar, would force many cloud computing providers to withdraw from the NC market entirely, thus negatively impacting the technological capabilities and competitiveness of NC-based law firms.

The consensus on the NC Proposed FEO is that, while well-intentioned, as written it would have the net effect of making the vast majority of cloud-based applications inaccessible to NC-based lawyers.

What are your thoughts on these proposals? Please share them in the comments.

Google's new black navigation bar is the first outward-facing component of a massive social networking project the company's been working on for over a year: Google+. I've been using Google+ during its "field test" (what we'd normally call a beta I think, but Google has forever ruined the public's expectations of a beta), and I've come away impressed. It may be the first social networking tool I use, and enjoy using, on a daily basis.

While I have a personal Facebook and Twitter account, I find I rarely use them. Yes, Facebook's endless privacy follies have given me cold feet, but more than anything I rarely have something I want to share with everyone I happen to be friends with on Facebook; the same goes for Twitter. Furthermore, staying on top of the flood of status updates on both social networks is a significant challenge. Ultimately, I find it too fatiguing to stay on top of Facebook and Twitter, and as a result end up using them only sporadically.

Google+ aims to solve this problem by offering a fundamentally different "following" and sharing model from Facebook and Twitter. Google+ allows you to establish "circles" of contacts, and you can choose to share your status updates with one or more circles. Thus, you end up setting up a variety of micro social networks consisting of your various social circles: your friends, your professional connections, your clients, and so on.

Unlike Facebook and Twitter, with Google+ your social network mirrors your real-life social network: your various contacts are compartmentalized, and you can choose to share information selectively among your contacts (the underlying rationale behind Google+'s design is outlined beautifully in this presentation by Paul Adams.)

I, for example, have a several circles set up to mirror my real-world social circles: a "Professional Connections" circle set up for people in the legal industry I'd like to share with; a "Family" circle set up that I'll post pictures of my kids to; a "Friends" circle that I'll post pictures of last week's BBQ to. You can add and customize your Google+ circles to your content, making them as small or as large as you like.

Google's circles also help with filtering incoming information. Your stream by default contains updates from all of your circles, but you can easily filter your stream to only include updates from certain circles.

The benefits to the "circles" approach are so obvious it's surprising Facebook, Twitter and others have been beaten to the punch by Google. It's Google+'s killer feature, and its best hope of differentiating itself from other social networks.

After its failed experiments with Buzz and Wave, Google seems to have a success on its hands with Google+. By tapping into Google's massive 1B+ userbase, Google+ will undoubtable reshape the social networking landscape, and it's a change that I, for one, welcome.

TED Curator Chris Anderson suggests that we help curb the proliferation of emails by subscribing to a Charter that he and fellow TEDer Jane Wulf have devised. He argues that in some sense we have all joined spammers in contributing to the modern "tragedy of the Commons" that our summed-up bad behaviours have produced. You'll get a much better idea of what he means by reading the actual Charter, set out below. (It's available as plain text and as a PDF, also, in case you want to pass it around the office — not by email.)

1. Respect Recipients' Time
This is the fundamental rule. As the message sender, the onus is on YOU to minimize the time your email will take to process. Even if it means taking more time at your end before sending.

2. Short or Slow is not Rude
Let's mutually agree to cut each other some slack. Given the email load we're all facing, it's OK if replies take a while coming and if they don't give detailed responses to all your questions. No one wants to come over as brusque, so please don't take it personally. We just want our lives back!

3. Celebrate Clarity
Start with a subject line that clearly labels the topic, and maybe includes a status category [Info], [Action], [Time Sens] [Low Priority]. Use crisp, muddle-free sentences. If the email has to be longer than five sentences, make sure the first provides the basic reason for writing. Avoid strange fonts and colors.

4. Quash Open-Ended Questions
It is asking a lot to send someone an email with four long paragraphs of turgid text followed by "Thoughts?". Even well-intended-but-open questions like "How can I help?" may not be that helpful. Email generosity requires simplifying, easy-to-answer questions. "Can I help best by a) calling b) visiting or c) staying right out of it?!"

5. Slash Surplus cc's
cc's are like mating bunnies. For every recipient you add, you are dramatically multiplying total response time. Not to be done lightly! When there are multiple recipients, please don't default to 'Reply All'. Maybe you only need to cc a couple of people on the original thread. Or none.

6. Tighten the Thread
Some emails depend for their meaning on context. Which means it's usually right to include the thread being responded to. But it's rare that a thread should extend to more than 3 emails. Before sending, cut what's not relevant. Or consider making a phone call instead.

7. Attack Attachments
Don't use graphics files as logos or signatures that appear as attachments. Time is wasted trying to see if there's something to open. Even worse is sending text as an attachment when it could have been included in the body of the email.

8. Give these Gifts: EOM NNTR
If your email message can be expressed in half a dozen words, just put it in the subject line, followed by EOM (= End of Message). This saves the recipient having to actually open the message. Ending a note with "No need to respond" or NNTR, is a wonderful act of generosity. Many acronyms confuse as much as help, but these two are golden and deserve wide adoption.

9. Cut Contentless Responses
You don't need to reply to every email, especially not those that are themselves clear responses. An email saying "Thanks for your note. I'm in." does not need you to reply "Great." That just cost someone another 30 seconds.

10. Disconnect!
If we all agreed to spend less time doing email, we'd all get less email! Consider calendaring half-days at work where you can't go online. Or a commitment to email-free weekends. Or an 'auto-response' that references this charter. And don't forget to smell the roses.

I'd add that you should stop self-inflicted additions to the inbox and get your blog updates via RSS instead of email. Here at Slaw, we're keen — nay, eager — to have you read us; but we've no wish to add to your sense of email overload.

I'm going to adopt #8 for sure. And, though it pains me, I'll also buy into #9. And I think I'm easy with the rest.

How about you?

Outlook 2010, I love you, I think. Yesterday I attended an internal training class that introduced me to Outlook 2010. This is one of the beginning steps (from the user perspective) of a renovation, evolution, revamp, revision of our firms desktop software. From the perspective of our IT department, this is the mid-point in a long line of projects that will culminate in current Office Suite software for our firm's users.

Since other Slawyers may be going down (moving up?) this particular software update road, I am sharing a couple of my Outlook 2010 experiences. Note that we jumped from Outlook 2003 straight to 2010 so the 'new' features may be only new to me.

• The Send button has moved (to the left of the To and other header fields in the email drafting window) [I might appreciate this once I get used to it]
• Users can customize the category names so instead of "green category", my category flag can have a unique name [super groovy productivity innovation from my perspective]
• I can have multiple categories attached to an email [I like this a lot too]
• Preview attachments [I'm liking this feature as an option to opening all attachments since we have faxes appear as email attachments at my shop]
• Viewing multiple calendars [excellent]
• Automatic automation of "quick steps" for moving items to folders [It is disconcerting to see a ribbon button created for a task that I asked the software to do once - move something to a particular folder - without the software asking if I wanted to create a button for repeating the action]

Like any software change, everything will be great if I remember to read the screen.

Comment if you have some tips to share about email productivity, or Suggest a Tip by clicking the link in the footer at tips.slaw.ca

Last week I asked if Apple's forthcoming iCloud service spells doom for Dropbox. My conclusion was no, iCloud does not pose a critical threat to Dropbox, but this week I'm worried about a new threat to Dropbox's viability: Dropbox themselves.

Yesterday Dropbox disclosed a "bug" they'd introduced that allowed users to log into any Dropbox account using an arbitrary password. That is, if you have a Dropbox account, all a potential hacker would have to know was your e-mail address, and he would have unfettered access to your entire Dropbox.

Although the impact of the bug on users was mitigated a short lifetime in "the wild" (about 4 hours on June 19th), the impact on Dropbox's reputation will likely be everlasting. It is inexcusable such an egregious bug would not be caught by an automated testing or manual QA processes.

Worse, this security incident comes on the heels of an update to Dropbox's privacy policy where the company admitted that it did, in fact, have access to its users data and that it would release private Dropbox data to law enforcement agencies if so required. Thousands of Dropbox users complained the company had misled them, and one group of users even went as far as to file a complaint with the FTC.

Dropbox has been an incredibly popular service among lawyers and non-lawyers alike, but a company asking users to entrust it with private data cannot afford mis-steps like this. If you are storing sensitive data on Dropbox, seriously consider encrypting your data prior to storing it on Dropbox, or look to alternatives to Dropbox that encrypt your data by default, such as SpiderOak.

I've had an iPad for about a month now. I remain convinced that the tablet format is a game changer. There are pros and cons and fans and detractors for various devices. In the long run it will be interesting to see how the market shakes out. There is of course the iPad, various Android devices (the Samsung Galaxy 10.1 just coming out now is highly anticipated), and the Blackberry Playbook. And don't count out Microsoft. They will be late to the game, but their Windows 8 concept may gain some traction.

I'll give some examples of how I have found it useful for work. Most of these things could be accomplished on a laptop – but a tablet wins out on portability, ease of use, and startup speed. One aspect that wins big time over a laptop is its unobtrusiveness. Using it when other people are around, such as in a meeting, or when giving a presentation, removes the barrier of the screen.

I recently gave a presentation on social media and the law to a client group. I have given that presentation before, and put it on the iPad to review it ahead of time and update my speaking notes. That was done at night and over a weekend. I then used it during the presentation to keep on track. The powerpoint was on a computer that was already being used for the meeting, but it is possible to connect the iPad to a projector to run a powerpoint.

Yesterday I was on a panel at a Chamber of Commerce presentation on social media. To collect my thoughts for that, I used the iPad to cut and paste and edit from the larger presentation. Then used it during the presentation for speaking notes, and to jot down some references from the other speakers.

It is starting to become a tool in my quest for a paperless office. It is very easy to use to review and mark-up documents, which can be then either emailed to myself or sent via dropbox to deal with in our document management system. I have been marking up documents for some time on my PC using a Wacom tablet. Using the tablet is just as easy, if not easier.

I have also started to use it to take handwritten notes when talking to clients. Old habits die hard, though, and I am not yet to the place where I automatically grab it instead of a pad of paper. Perhaps I need to keep it front and centre on my desk and put the pad of paper behind me.

To mark up documents and take handwriten notes (I'm a lousy typist – the on screen keyboard is actually quite easy to use) I bought a capacitive pen. You can use your finger, but I found that it is easier to use the pen.

For those wanting to know more about specific apps, here's an article from law.com entitiled How the iPad Can Increase Lawyers' Productivity.

Last week Apple released iCloud, a new cloud-based service for syncing documents, calendars, e-mails, photos, music and more across your desktop, laptop, iPad, and iPhone.

iCloud represents one of the most important and risky strategic shifts Apple has ever taken. Prior to iCloud, Apple's "digital hub" strategy promoted the PC as your central data store, with the various "spokes" of the digital hub – your iPhone, iPad, Apple TV, etc. – synchronizing with your PC. With iCloud, the PC has been, in Jobs' words, "demoted" to just another device – with the cloud taking its place.

The shift from the PC to the cloud is nothing new, and many startups have fostered due to void in Apple's cloud strategy. Most notably, perhaps, is Dropbox, the much-loved cloud-based file synchronization tool. When iCloud arrives this Fall, will it be a Dropbox killer?

My money is on "no."

First, Apple has to get iCloud right in order to compete effectively with Dropbox. Apple has had a string of high-profile flops with cloud-based products. Its MobileMe launch was a disaster. While the stakes are high with iCloud, and Apple is no doubt investing tremendous engineering resources into getting things right, there's no guarantee they can pull such an ambitious and far-reaching product release off without any hitches. File synchronization, as trivial as it may sound, is a very difficult problem to solve. Dropbox was the first product on the market to make a simple cloud-based file synchronization service that just works, and Apple has a substantial challenge ahead of it in trying to achieve the same level of functionality, reliability, and simplicity as Dropbox.

Second, Dropbox works extremely well across multiple desktop operating systems, including Windows, OS X, and Linux, as well as a variety of mobile operating systems, including iPhone, iPad, Android and BlackBerry. While iCloud will ostensibly be Windows-compatible, it will no doubt work most smoothly on a Mac. Furthermore, Apple hasn't yet, and likely never will, announce iCloud integration for Android and BlackBerry devices. It's extremely attractive to have a reliable, persistent "dropbox" of your data across any of your devices; for an Apple-only user iCloud may be a great fit, but many users iCloud will represent an extremely high level of Apple lock-in that will be hard to stomach.

Third, Dropbox has a huge amount of momentum. It has been growing rapidly since its launch in 2008, and its userbase now numbers over 25 million. If iCloud had been released two years ago it might have curtailed Dropbox's growth, but Dropbox has enough users, revenue and rabid fans that it will continue to prosper after the introduction of iCloud.

Finally, competition is not a zero-sum game. Marco Ament, the author of the extremely popular Instapaper, argues in a blog post that competition from a big player such as Apple isn't necessarily a bad thing for the startups that may compete with it. Apple's entry into cloud services will raise the general public's awareness of the cloud and cloud-based syncing, which could be a tremendous driver of growth for Dropbox.

Marco frames his challenge with Instapaper as being able to describe Instapaper as “like Safari’s Reading List, but better, in these ways.” Likewise, Dropbox's challenge will be to describe itself as "like iCloud, but better in these ways." If it can succeed at that, iCloud may be the best thing that has ever happened to Dropbox.

iCloud sounds like a tremendously exciting service, and I hope Apple can pull it off. However, even if iCloud is everything Apple says it will be, it won't kill Dropbox.

At today's Worldwide Developer Conference (WWDC), Apple's Steve Jobs announced a new set of cloud services, dubbed iCloud, that will integrate with iOS-based devices, such as the iPad and iPhone, and Mac OS X. The new services will bring tight cloud-based data synchronization to Apple's desktop, laptop and mobile device lineup.

iCloud will allow you to store all of your documents, calendars, emails, photos, and more in the cloud, and will automatically synchronize this data to all of your devices. Additionally, iCloud will make your music available across all your devices.

Backup services will also be incorporated into iCloud. Rather than having to back up to a PC or an external backup, users of iCloud will be able to directly back up their iPads, iPhones and iPod Touches to the cloud. Likewise, device activation and software updates, which previously had to be performed via PC-based tethering, can now be done "over-the-air".

Jobs famously described the arrival of the iPad as the beginning of the "post-PC era." Until now, however, iPads, iPhones and other so-called post-PC devices have heavily relied on PC-based syncing for installation, configuration, updates, and media synchronization. With the introduction of iCloud, Apple has helped usher in a truly "post-PC era."

This week's Lawyer's Weekly features an article by Luis Milan titled Experts Warn Cloud Computing Still Risky. The article cites recent data breaches at Sony Corp. and Epsilon Data Management as a catalyst for concern around cloud computing, and goes on to cite several experts on the potential privacy implications of these data breaches.

The only problem? Neither data breach, as the article's title implies, has anything to do with cloud computing.

The Sony data breach, where personal information for millions of its Playstation Network users was compromised, was not the result of Sony's cloud computing infrastructure being compromised; instead, Sony's on-premise computing infrastructure was compromised because it was running obsolete software with numerous security vulnerabilities. To make matters worse, Sony had been made aware of this via warnings in public forums. Likewise, the security breach at Epsilon, where customer names and e-mail addresses for hundreds of its blue-chip clients were compromised, was caused by the company's own on-premise servers being hacked.

The stories cited in this article, and many of the quotes provides for the article, highlight the risk inherent in storing data electronically, especially if these storage systems are connectable via the Internet. Conflating the risks inherent in storing data electronically with risks specific to cloud computing is confusing at best and disingenuous at worst. Sony's infrastructure could be considered analogous to a privately owned, poorly maintained aircraft; if such an aircraft crashed, no-one would consider penning an article calling all commercial aviation "risky".

There's no question that both Sony and Epsilon have mis-handled data that was entrusted to them. Sony, for one, was negligent in its duties by ignoring warnings that its systems were vulnerable. There's no doubt that stronger privacy legislation should be enacted, and stronger penalties for companies that violate user's trust should be implemented. This article, and the discussion around it, should really be about the ramifications of companies storing private user data; the method a company uses to store and retrieve this data, whether on-premise or cloud-based, is irrelevant.

The Google IO developer conference has just finished up, with one of the major announcements being the new Chrome OS laptops, such as the Samsung Series 5 seen in this Engadget video:

The feature list is intentionally short, but the prices are comparable to the sub-$450 laptop market — a little high, honestly, since the chromebook doesn't look all that superior to current netbook trend. If you've used Google's Chrome browser with apps, you already know about the user experience. The lack of the ability to install executable files has caused some speculation that the antivirus industry may be impacted. There's also a monthly subscription model for schools and businesses. Difficult to say how compelling that model will be, but the addition of a Citrix receiver may help.

Will Chromebooks have an impact on the legal industry? David Whelan's column offers an interesting companion to this announcement — things are changing, albeit slowly. Not every device in a law firm setting must be maxed out in terms of its hardware capability. Many reception area terminals, library terminals, lunch rooms or complementary computers in board rooms would benefit from restricted access devices. Taking a data-free computer overseas might also prove valuable for lawyers who aren't comfortable exposing client information.

Chromebooks are set for release June 15th in the US (not sure about Canada).

There have been two important and encouraging developments on the ethics of cloud computing over the last month.

First, the ABA Commission on Ethics 20/20 has issued an initial set of draft proposals addressing lawyers' confidentiality-related obligations when using technology. The Commission's draft report proposes:

• The development of a centralized, user-friendly website that contains continuously updated and detailed information about confidentiality-related ethics issues arising from lawyer’s use of technology, including the latest data security standards.
• Amendments to several Model Rules of Professional Conduct and their Comments to offer specific guidance and expectations relating to technology.

The amendments to the Model Rules of Professional Conduct do not relate to a specific technology (e.g. cloud computing), as the Commission recognizes that "unlike the proposed website, which can be regularly updated in light of new technology and changing security concerns, the rule and comment-based proposals necessarily offer more general guidance that are not tied to the use of any particular form of technology."

The Commission also notes that technology has become an integral part of virtually every law practice, and as such a basic working knowledge of technology's benefits and risks should be regarded as a baseline requirement to practice law competently:

The Commission concluded that competent lawyers must have some awareness of basic features of technology. To make this point, the Commission is recommending an amendment to Comment [6] of Model Rule 1.1 (Competence) that would emphasize that, in order to stay abreast of changes in the law and its practice, lawyers need to have a basic understanding of technology’s benefits and risks.

The Commission also proposes amendments to make the ethical obligation to safeguard client data more explicit:

Proposed new Model Rule 1.6(c) would make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure and unauthorized access. This duty is already implicit in Model Rule 1.6 and is described in several existing comments, but the Commission concluded that, in light of the pervasive use of technology to store and transmit confidential client information, this obligation should be stated explicitly in the black letter of Model Rule 1.6.

The Commission has made a set of well-reasoned recommendations that would see a set of technology-related but implementation-neutral amendments to the Model Rules of Professional Conduct. The proposed changes are good news for cloud computing vendors and users alike, as the Commission has recognized that the Rules of Professional Conduct should not be bound to a specific type of technology, whether it's on-premise computing, cloud computing, or mobile computing, but should rather detail the expectation for a lawyer to both understand and minimize the risks relating to his or her use of technology. The educational website the Commission recommends developing would be a valuable resource to help lawyers meet this obligation.

The second major cloud computing ethics development comes from North Carolina, where the NC State Bar has updated its Proposed Formal Ethics Opinion on the use of Software-as-a-Service in a law firm. The NC State Bar opinion is one of the first ethics opinions in North America to explicitly deal with the ethical issues relating to cloud computing. The following is the question posed of the ethics committee in Proposed 2011 Formal Ethics Opinion 6 – Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property:

SaaS for law firms may involve the storage of a law firm’s data, including client files, billing information, and work product on remote servers rather than on the law firm’s own computer and, therefore, outside the direct control of the firm’s lawyers. Lawyers have duties to safeguard confidential client information, including protecting that information from unauthorized disclosure, and to protect client property from destruction, degradation, or loss (whether from system failure, natural disaster, or dissolution of a vendor's business). They also have a continuing need to retrieve client data in a form that is usable outside of a vendor's product. Given these duties and needs, may a law firm use SaaS?

The proposed ethics opinion answers:

Yes, provided steps are taken effectively to minimize the risk of inadvertent or unauthorized disclosure of confidential client information and to protect client property, including the information in a client’s file, from risk of loss.

The opinion goes on outline minimum security measures to be employed by a SaaS-using law firm and references other best security practices, such as the newly-formed ILTSO standards.

The ABA Commission on Ethics 20/20 proposal and the NC State Bar proposed ethics opinion both represent important steps forward in clarifying the ethics of cloud computing, and it's encouraging to see both organizations take forward-looking positions on the use of technology in law firms.

A message on the American Law Libraries – Private Law Libraries SIS Listserv has alerted me to: (i) A new blog by Law Librarian Jean O'Grady called Dewey B Strategic which has the subtitle of "Risk, value, strategy, libraries, knowledge and the legal profession," and (ii) a recent intriguing post on this new blog called The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training that raises the challenge (if not impossibility) of trying to teach "cost-effective searching" on Westlaw or Lexis to students or associates given the complexity of how these products are priced. Some examples of the points being made from the post:

Handing an associate a Lexis or Westlaw password and asking them to be “cost effective,” is like handing someone a credit card and sending them into a store in which none of the merchandise is priced and then berating them when the bill comes in exceeding your budget. No consumer affairs department would allow a retailer to perpetrate this kind of thing on the public. How is it that almost every law firm in the US has put up with this for the past 3 decades?

_________________

The obsession with being “cost effective” distracts the associate from focusing on the real goal — finding the right answer. Here comes the brain theory. Effective legal research requires deep focus and concentration yet… “the myth of cost effective research” requires an associate to engage half of their attention on a collateral and competing analysis of factors which have nothing to do with the substance of the law. (Am I in hourly or transactional mode? Is this content included or excluded? Should I print or read online? Should I execute a new search or will that cost too much? Have I selected the cheapest file? Is it cheaper to print by the line or print a page or print a document or should I email the results to myself?)

♫ Finally the King is Dead, we cried off with his head
Everything must change (Everything must change), everything must change…♫

Music, Lyrics and Recorded by The Herd.

For those who were fans of the office suite: NeoOffice (for the Mac) or OpenOffice (for Windows), being free open source office productivity suites originally created by Sun Microsystems, you may be downhearted to hear that OpenOffice (and NeoOffice) are now officially dead. Sigh!

However, this is truly a case of "The King is Dead – Long Live the King!". OpenOffice and NeoOffice live on – being open source software – in a new incarnation. LibreOffice.

For one, those of us who were fans can now refer to this new suite by one name – rather than two!

Secondly, this new suite will run under Microsoft Windows, Mac OS X and Linux (Debian, Ubuntu, Fedora, Mandriva, Suse, …). It is also is available in more than 30 languages.

Third, it offers a word processor, a spreadsheet, a presentation application, a drawing application, a database and more. The only thing that it does not offer is an email/calendar application similar to MS Outlook.

I can attest to the stated benefits of LibreOffice:

LibreOffice is user-friendly:

• You get a simple-to-use yet powerful interface that is easy to personalize – Microsoft Office users will find the switch easy and painless, with a familiar look and feel.
• Compatible with all major competitors' file formats. You can easily import files from Microsoft Word, Excel and PowerPoint and many other formats, and can easily save to Microsoft Office and other formats when needed.
• LibreOffice is supported by a big worldwide community: volunteers help newcomers, and advanced users and developers can collaborate with you to find solutions to complex issues.

What are the features of LibreOffice?

Writer is the word processor inside LibreOffice. Use it for everything, from dashing off a quick letter to producing an entire book with tables of contents, embedded illustrations, bibliographies and diagrams. The while-you-type auto-completion, auto-formatting and automatic spelling checking make difficult tasks easy (but are easy to disable if you prefer). Writer is powerful enough to tackle desktop publishing tasks such as creating multi-column newsletters and brochures. The only limit is your imagination.

Calc tames your numbers and helps with difficult decisions when you're weighing the alternatives. Analyze your data with Calc and then use it to present your final output. Charts and analysis tools help bring transparency to your conclusions. A fully-integrated help system makes easier work of entering complex formulas. Add data from external databases such as SQL or Oracle, then sort and filter them to produce statistical analyses. Use the graphing functions to display large number of 2D and 3D graphics from 13 categories, including line, area, bar, pie, X-Y, and net – with the dozens of variations available, you're sure to find one that suits your project.

Impress is the fastest and easiest way to create effective multimedia presentations. Stunning animation and sensational special effects help you convince your audience. Create presentations that look even more professional than the standard presentations you commonly see at work. Get your collegues' and bosses' attention by creating something a little bit different.

Draw lets you build diagrams and sketches from scratch. A picture is worth a thousand words, so why not try something simple with box and line diagrams? Or else go further and easily build dynamic 3D illustrations and special effects. It's as simple or as powerful as you want it to be.

Base is the database front-end of the LibreOffice suite. With Base, you can seamlessly integrate your existing database structures into the other components of LibreOffice, or create an interface to use and administer your data as a stand-alone application. You can use imported and linked tables and queries from MySQL, PostgreSQL or Microsoft Access and many other data sources, or design your own with Base, to build powerful front-ends with sophisticated forms, reports and views. Support is built-in or easily addable for a very wide range of database products, notably the standardly-provided HSQL, MySQL, Adabas D, Microsoft Access and PostgreSQL.

Math is a simple equation editor that lets you lay-out and display your mathematical, chemical, electrical or scientific equations quickly in standard written notation. Even the most-complex calculations can be understandable when displayed correctly. E=mc².

LibreOffice also comes configured with a PDF file creator, meaning you can distribute documents that you're sure can be opened and read by users of almost any computing device or operating system.

 

I *loved* NeoOffice and I am sure that LibreOffice will continue in its fine footsteps. While everything must change, it is indeed reassuring that a phoenix has risen from the ashes of OpenOffice to carry on..

Last week Amazon's popular AWS cloud computing service suffered an unprecedented multi-day outage. The outage brought down thousands of websites, including popular websites such as Quora, Reddit and FourSquare, and generated coverage from mainstream publications such as the New York Times and the Wall Street Journal.

While many are quick to point to the outage as a sign that cloud computing is unreliable and not ready for mission-critical applications, the outage has simply brought a reality of both on-premise and cloud computing to light: systems fail, and mission critical applications need to be designed to expect failure.

The media has focused on the outage and the websites that it brought down, but what is more notable in my mind is the high-traffic, high-profile websites hosted on Amazon's cloud that sailed through the outage, completely unaffected by the problems in their underlying cloud computing infrastructure.

Netflix, for one, hosts its entire video streaming service on Amazon's cloud, and remained 100% available during the outage not because of good luck, but because of good application design. Netflix appreciates that, while Amazon offers 99.95% uptime guarantee, the 0.05% of downtime has to be anticipated not as a negligible, low probability risk, but rather as a foregone eventuality. Netflix has designed its systems to be resilient to all kinds of unpredictable failures, even going to the extent of integrating a so-called "Chaos Monkey" into its systems that continually and randomly crashes parts Netflix's infrastructure. Netflix knows by designing its systems to withstand the vagaries of a "Chaos Monkey", its systems will be all the more resilient to true outages. That engineering effort has clearly paid off.

Smugmug, a popular photo-sharing service, is also hosted on Amazon's cloud. Like Netflix, Smugmug continued operating normally during Amazon's outage by anticipating failures of nearly every type. Smugmug's CEO, Don MacAskill, chronicles the lengths his company has gone to anticipate and withstand failures in Amazon's cloud in a detailed blog post, and like Netflix, he builds resiliency by constantly causing deliberate failures:

I regularly kill off stuff on [Amazon's cloud] just to see what’ll happen. I found and fixed a rare bug related to this over the weekend, actually, that’d been live and in production for quite some time. Verify your slick new eventually consistent datastore is actually eventually consistent. Ensure your amazing replicator will actually replicate correctly or allow you to rebuild in a timely fashion. Start by doing these tests during maintenance windows so you know how it works. Then, once your system seems stable enough, start surprising your Ops and Engineering teams by killing stuff in the middle of the day without warning them. They’ll love you.

While last week's outage has been an embarrassment to both Amazon and the companies that depend on it, the silver lining is that outage has driven home the fact that applications need to be engineered differently from the ground-up to expect and survive failures at various levels in the cloud infrastructure. Last week many companies with insufficiently robust applications were caught off-guard by Amazon's failure, and will most certainly be re-assessing their application architecture. Companies using on-premise computing rather than cloud computing can also learn lessons from this outage by, like Netflix and Smugmug, continually testing resiliency to failure by deliberately causing failures in their systems.

As those who read me will know, I'm a big fan of Apple products, the proud user of an iPhone. And I think Dropbox is a cloud with silver on the outside and on the lining. In the last couple of days I've learned about vulnerabilities for each that make me realize again how exposed my data are and make me more determined to learn about — and use — encryption.

About a month ago I wrote about a German politician who was alarmed at the detailed nature and the duration of the data kept by his service provider (Mobile Phone Companies and Data About Our Lives). Now I have to bring it closer to home, at least for some of us. If you have an iPhone (or an iPad with a cellular plan), that device retains detailed information about your location at each of the times you use your phone. When you sync that device on an Apple machine, as you would to transfer music files or other data between the smart device and the desktop or laptop, the program performs a backup of the data currently on your iPhone or iPad, including your location data. All of your retained backups provide a shockingly clear picture of where you've been and when. Apple Inc. has access to the data.

iPhoneTracker is a free application you run on the Apple computer that you sync with your iPhone; it charts your locations on a map and provides a timeline slider as well. The image below illustrates what you'll see:

The iPhoneTracker site explains how you can eliminate old files and how you can encrypt your backups (which will at least prevent local intrusions); and it points out that there's nothing you can do to protect the data on your iPhone or iPad from being sent to Apple.

(I do not know whether RIM or Google collects location data from devices running their OSs.)

With Dropbox the vulnerability is different. They have clear company rules about keeping their noses out of the data you store in their cloud; and they encrypt your data so that it's fairly safe from hackers and accidental releases. In this case it's the US government that is a source of concern. As you would expect from a law-abiding corporation, Dropbox has made it explicit in its Security Overview that it will release your data to authorities "when it receives valid legal process," and it will remove their encryption from the data before handing it over. This has caused something of a stir on the internet, even though US laws gave them no real choice.

Lawyers in Canada are using Dropbox. Indeed, it is becoming a basic tool for those who have virtual offices, those who want to cross the border with clean laptops and yet access their data from their destination, and those who simply like the convenience of a reliable cloud. Fortunately for them, it is possible to add client-side encryption to the mix, such that the data are protected against easy access, even by foreign authorities. Dropbox offers the suggestion itself in the same Security Overview:

Specifying Your Own Private Key Using TrueCrypt

Dropbox does not discriminate between the types of files stored in your Dropbox nor the applications used to open those files. This means you can use your own software encryption methods, such as third-party encryption software, to keep your files secure on your terms.

There are many sites that will help you configure an encryption system that's compatible with Dropbox (this is one example).

I'm not Chicken Little here: the sky isn't falling, and even if it is, it isn't really news. But I am concerned that I, and some of you, be reminded from time to time of the exposed nature of digital data and of the fairly simple means available to reduce that exposure. For me, this feels a bit like the struggle it used to be to get people to back up their data: we knew our hard drives would fail and yet we avoided the relatively trivial work of backing them up — until, of course, the thinkable happened. Data breach is the new thinkable.

[hat tip re Apple: @mgeist]

♫ I need perspective, heard the trumpet call… ♫

Music and lyrics by Peter Gabriel "Perspective".

Blackberry PlayBook

Having returned from speaking at ABA TECHSHOW 2011 in Chicago last week, I thought I would write about the changes and themes that I felt underscored this year's conference. To be sure there were many exciting sessions, speakers and technologies. There was an energy at this year's conference that seemed to be somewhat subdued in the last iteration, perhaps due to the economic uncertainty of the last while. But this year, the theme seemed to be innovation – and lots of it.

I think the primary cause of this was the explosion in the tablet world combined with the movement to cloud computing. Both of these freed lawyers from the traditional tethers of wires and such that largely kept us tied to a desk. The birth of this movement was, I believe, in the rapid expansion of smart phones such as the Blackberry, iPhone and Android phones. But the form factor in a smart phone is really too small to do any serious work away from the office. While laptops are wonderful for working out of the office, they are still heavy and fall into the 'luggable' category. But the iPad changed all that. Suddenly now there is a light, portable and highly useful device that can be used for serious work out of the office. Tablets also work nicely with Cloud-based applications, delivering a knockout one-two punch. Certainly in looking about during the sessions at ABA TECHSHOW, the number of attendees who were taking notes on their tablets seemed to outnumber the number of those using laptops in the rooms. And tweeting. And blogging – live.

A telling example of this was the "60 Apps in 60 Mins" presentation by Jeff Richardson,Reid Trautz (ABA TECHSHOW 2012's Chair) and Josh Barrett. In 60 minutes, these three presenters gave a wonderful overview of the vast array of apps that are available for lawyers to use on their iPad. Of course, ABA TECHSHOW also happened to offer a sneak preview of the BlackBerry PlayBook, the latest tablet to hit the market.

Of all the technologies presented at the last few ABA TECHSHOWs, I think the tablet+cloud revolution is certainly the biggest one to hit the legal industry. Lawyers like applications that are inexpensive, easy to use and offer great productivity. The iPad, Android tablets such as the Samsung Galaxy and the BlackBerry PlayBook are game changers, in my humble opinion. So much so that I now have an iPad2 wrapped in a leather case that contains a bluetooth keyboard. This combo offers a computing environment that is light, easy to use and easy to read. I wonder how long it will be before a lawyer hands his tablet up to a Judge in court – allowing the judge to read the case that they just pulled down from the web in response to their opponent's argument? I think I just heard Gabriel's trumpet call…announcing the end of computing as we know it..