Windows 10 vs. Rule 1.6

2015-05-13_02-07-12
Is Windows 10 Ethically Compliant?

Is Windows 10 MRPC Compatible?

Apparently, from the feedback I’m getting, Microsoft® finally got it right with Windows 10! As a legal technology professional I have been inundated with inquiries from attorneys on whether Windows 10 is worth the upgrade (even though it’s free), and if they should think about making the switch. My response has consistently been to wait.

First, like any new product I always suggest letting the manufacturer work out the kinks before jumping aboard. Similarly, like purchasing a new model year car, you never really want the first batch rolling off the assembly line. That said, after digging further under the hood, it appears there are other potential pitfalls with Windows 10 that could specifically leave attorneys on the wrong side of the rules of professional conduct!

EULA

What Windows 10 End User License Agreement Says

Apparently, Microsoft is following the footsteps of other “Big Data” mining companies and has gotten creative in their user terms and conditions. How creative you ask, well apparently creative enough to give Microsoft ingress to virtually any and all data you may have or had access to while using their operating system! This ingress gives Microsoft permission to track your location, activities, browser history, and more importantly, READ YOUR EMAILS! Further, there does not appear to be a way for less sophisticated users to disable these settings. This is why it’s so important to be aware of what’s in that End User License Agreement.

Moreover, as pointed out by Daily Kos, Microsoft’s privacy policy specifically states the following:

Finally, we will access, disclose and preserve personal data, including your content (such as the content of your emails, other private communications or files in private folders), when we have a good faith belief that doing so is necessary to:

  1. comply with applicable law or respond to valid legal process, including from law enforcement or other government agencies;

  2. protect our customers, for example to prevent spam or attempts to defraud users of the services, or to help prevent the loss of life or serious injury of anyone;

  3. operate and maintain the security of our services, including to prevent or stop an attack on our computer systems or networks; or

  4. protect the rights or property of Microsoft, including enforcing the terms governing the use of the services – however, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property of Microsoft, we will not inspect a customer’s private content ourselves, but we may refer the matter to law enforcement.[1]

Model-Rules-of-Professional-Conduct

What the Model Rules of Professional Conduct Say

Generally, under Model Rules of Professional Conduct (MRPC) Rule 1.6, a lawyer is prohibited from revealing any information related to the representation of a client. Either voluntarily or involuntarily, unless informed consent is given by his/her client.[2] Recently, the New York State Bar specifically addressed this very conceivable dilemma in its Opinion 782, which addressed inadvertent confidential data disclosures through email, opining in part that, “a lawyer must exercise reasonable care to ensure that he or she does not inadvertently disclose his or her client’s confidential information.”[3]

Though some disclosures are unavoidable, under MRPC 1.6, where “the disclosure is impliedly authorized to advance the best interest of the client and is either reasonable under the circumstances or customary in the professional community,” is permitted, however an attorney should always know what the data is, where it’s located, and who has access to it. Granted these rules were designed to regulate traditional vendors such as storage facilities or copy services, they are also relevant to any form of data transmission. One could arguably say that since there is little control over the settings that control the data sharing in Windows 10, or since the data mining is customary a lawyer should be in the clear, right? Wrong. The model rules consistently say attorneys should take reasonable steps to protect a client’s data at all times. This includes everything from choosing to forgo using Windows 10 all together, to familiarizing yourself with ways to prevent data ingress.

What Can You Do About It?

By now, I’m sure you’re thinking, it’s probably just not worth using Window’s 10 if you want to remain MRPC 1.6 compliant. I would tend to agree, especially at this stage when little is known about the vastness of Microsoft’s data mining. However, for those who have already made the switch, there are some options. As Jacob Siegal noted, a simple program called “The Windows Club” allows users to tweak Windows 10 in order to disable some pervasive features such as user tracking, telemetry, and hiding your network from others.[4] Additionally, I would not recommend integrating the same email address used for client data with the operating systems if prompted. Simply put, keep your business email separate from Windows 10 operating system. Of course, if you use an email client such as Outlook, this may be unavoidable. However, I’m specifically referring to the prompt for your email address when initially setting up the operating system. Either avoid supplying an email address all together, or if unavoidable, use an email address not associated with clients. Alternatively, to completely protect your neck, consider weaving in the possibility of ostensible third party data disclosures through the use of operating systems or cloud based data into your fee agreement.

Conclusion

The bottom line, use caution when implementing a new operating system, and use your best judgment when integrating your firm’s email with your operating system. Even with Windows 8, Microsoft wanted to link your email address to your operating system. Personally, I use Outlook Web App (OWA) for sending/receiving email to avoid using native programs such as Outlook. With today’s web (cloud) based email, virtually all the functionality of an email client is built right in. Of course, Ethical Compliance and Cloud Services for Law Firms is a whole other issue, but this generally means that one has taken reasonable steps to protect client data from being shared. This is really all you can do in order to be MRPC Rule 1.6 compliant.

[1] Windows 10 comes with built-in spyware. If your work requires confidentiality, DO NOT INSTALL., , http://www.dailykos.com/story/2015/08/02/1408113/-Windows-10-comes-with-built-in-spyware-If-your-work-requires-confidentiality-DO-NOT-INSTALL (last visited Aug 31, 2015).

[2] New York City Bar Association – Ethics Overview – Ethics Panel, , http://www.nycbar.org/ethics/ethics-overview (last visited Nov 18, 2014).

[3] Id.

[4] Windows 10: Modify your OS with Ultimate Windows Tweaker 4 | BGR, , http://bgr.com/2015/08/28/windows-10-ultimate-tweaks-download/ (last visited Aug 31, 2015).

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