Big data is watching your firm and your clients

The recent landmark ruling by the EU's Court of Justice over individuals' right to be forgotten by Google has brought debates about the right to privacy to the fore.

Ever since George Orwell's UK-based dystopian novel 1984 was published in 1949,
the phrase 'Big Brother is watching you' has been associated with any perceived attempt by the state to invade personal privacy. Of course, that has not stopped governments from trying to push through privacy-invading legislation to 'protect' their citizens, which has often been met with the attitude of having 'nothing to hide' by the masses. Today, this indifference has resulted in many individuals' apparent willingness to surrender their privacy to any unvetted entity for the sake of convenience and productivity.

Technology has evolved that does, as Orwell predicted, allow the state to monitor and record individuals' thoughts and activities. This is achieved not simply by placing surveillance cameras on the streets, but by individuals' readiness to communicate and record private information on their smartphones and tablets. What's worse, this sensitive and location-based data is voluntarily shared with any third-party vendor that has the gumption to
develop a useful or interesting app for note taking, mind mapping or project management,
for example.

And therein lies the problem for law firms. How can confidential client information be protected when clients themselves regularly place their data in the hands of free cloud storage providers or entrust it to third-party productivity apps on their mobile devices?
And, how far does the burden of proof rest with law firms to demonstrate that they did
not leak sensitive client information that miraculously appeared in the public domain? Perhaps one day law firms will be in the position to demand that clients agree to
minimum terms and conditions on securing their own data in exchange for receiving
premium legal services.

Of course, law firms must, in turn, ensure that whatever confidential data their clients entrust them with is kept secure - and that they have the most up-to-date systems and processes for doing so. This involves implementing a wide range of technical security measures, as well as managing the more fundamental issue of user stupidity - such as lawyers overriding security protocols on their mobile devices, storing sensitive data in unvetted third-party apps and/or losing their devices in public places. The obligation of
legal privilege is easily breached by those entrusted to protect it by the ease of access
to information that is made available to them today.

Meanwhile, the information on lawyers' and clients' thoughts and activities that is transmitted through mobile devices is being automatically collected and analysed for patterns, trends and other insights into individuals' and organisations' motivations and behaviours. To what end will this big data be used by the state, app vendors and
smartphone makers in the years to come? Is an era of cyber-totalitarianism in our future? Perhaps Orwell's catchphrase should be adapted today to 'Big Data is watching you'.

Until next time,

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