Michael L. Fox, assistant professor of Business Law, Pre-Law advisor, and MBA coordinator at Mount Saint Mary College, recently discussed how the law impacts electronic devices, social media, and cloud storage.
“Electronics, Law, and Society – Welcome to the eWorld,” part of the college’s Investigating Research on Campus (iROC) program, took place virtually on October 29. The iROC talks are free and open to the public, but you must register to attend. Register at www.msmc.edu/iROC
In the legal world, as a microcosm of larger society, there is heavy focus these days on the discovery of electronically stored materials and social media. Electronics are shaping and re-shaping law, our society, and the new normal. Welcome to the eWorld – get ready!
“Billions of documents, every day, are created,” Fox said. “Whether that’s Word and PDF files, or Google Docs, or photos, Instagram posts, Facebook posts, TikTok videos, YouTube videos – we’re talking trillions of bytes of data…every day. And very few of those are written on paper and then filed, shredded and thrown in the trash, or set on fire.”
One simple question of the digital age leads to a complex answer: are electronic devices subject to searches without a warrant? Depending on the circumstances, and where you are, indeed they might be says Fox. Travelers are subject to searches at the border, including electronic devices. A customs agent may ask to see your devices if he or she suspects wrongdoing. And it’s not a request you can refuse: doing so might get the device impounded or you might even be arrested if you physically resist. So what does that mean if you’re an attorney or employee and you’re going abroad with your client or company’s sensitive documents or trade secrets? Put simply, those files might be at risk.
One solution is to upload the sensitive files to online Cloud storage, travel without the files on your device, and then download them to your device when you’ve arrived at your destination. Once you’ve carried out your business objectives, upload any changes and simply wipe the device clean again.
However, keeping files in the Cloud – that is, off-device storage – opens up questions of safety and ethics. “Courts have held that…secure third party cloud space is acceptable” when it comes to attorneys and law firms, Fox said. But he cautioned against keeping critical files on a Cloud service.
For example, should a lawyer keep a client’s sensitive data in Cloud storage, where it could be accessed by hackers? It’s not a good idea, says Fox. The same holds true with business secrets – Fox used the formula for Coca-Cola as an example, saying that it would best be kept away from Cloud storage. But for other files, ones that aren’t as sensitive, Cloud storage doesn’t pose nearly as many issues. It’s probably OK to use the Cloud for these kinds of files – unless the client or company objects, Fox noted.
So what about social media? Can the world use your social media against you? It sure can, said Fox. He cited Romano vs. Steelcase, Inc. In this seminal case, the plaintiff claimed injury after falling off of a defective chair at work. But later, the plaintiff posted photos of herself to social media, enjoying outside activities she claimed she could no longer engage in due to the injury.
The defendant caught wind of this, and they subpoenaed discovery from Facebook and MySpace for the information. The judge found that there is no privacy on social media, and ordered Romano to sign an authorization and release for the turn-over of the material. “That opened the floodgates,” said Fox. “Social media is now discoverable so long as it is relevant to claims or defenses, since ordinary discovery rules apply in litigation.”
The moral of the story: be careful what you put online.
This talk is based on Fox’s book, Primer for an Evolving eWorld, now in its second edition. Prior to writing this book, he developed his research through numerous presentations and several articles on various topics concerning electronics and law, presented to both attorneys and lay persons since 2008. Fox began on this path when electronic discovery was first becoming a mainstay in litigation, right after the federal rules of practice were amended to include specific discussion of electronic discovery, and before the seminal Romano v. Steelcase decision, and subsequent decisions, were issued.
The goal of the college’s iROC is to provide a forum for Mount faculty, staff, and students to showcase their research endeavors with the college and local communities. Presentations include research proposals, initial data collection, and completed research projects.
Mount Saint Mary College is ranked a Top-Tier University by U.S. News & World Report, and offers bachelor’s and master’s degree programs for careers in healthcare, business, education, social services, communications, media, and the liberal arts.