It is almost unfathomable to me that a lawyer would give up confidential client information without a fight.
Yet Sam Glover at The Lawyerist suggests that this might be an option: “If you are the sort of person who would fight such a subpoena, this would give you the option to do so.”
The context: Glover is talking about using SpiderOak for file sync instead of Dropbox.
Dropbox and SpiderOak both provide options for synchronizing data between computers and storing it in the cloud. While Dropbox has access to your data, SpiderOak has zero-knowledge encryption: data are encrypted on your end, and SpiderOak could not decrypt them even if ordered to.
What that means is that if the bad guys want to get your clients’ data from Dropbox, they can get a subpoena or a court order and serve it on Dropbox; not only can you not fight it, but you might not know about it. If the bad guys want to get your clients’ data from SpiderOak they have to go through you.
If someone comes to me with a subpoena for clients’ data, I will fight it. If I am ordered to comply, I will decide whether the principle is worth going to jail. But I hold myself to a high standard, and sometimes I forget that others’ standards are lower. Maybe it’s acceptable for non-criminal-defense lawyers to give up clients’ confidential information without a fight. So let us not be too hard on Glover.
Let us limit the discussion to criminal-defense lawyers.
For online data backup in a criminal-defense practice, Dropbox is not an option.
Backing up data off-site is indispensable. Syncing data among multiple computers (home desktop, laptop, office desktop) is invaluable. Sharing data with clients is useful. To do all of this I used to use Dropbox. Once I considered the confidentiality implications, however, I realized that it was a mistake. Now I will use Dropbox to share with clients stuff that the government already has, and sometimes for sharing large non-sensitive files, but never for anything that would be damaging to the client’s case if the government got it. If the government is going to subpoena my files, I want to be the gatekeeper.
Glover, quoting Eric Cooperstein, points out that “Dropbox is more secure than anything most lawyers have used to secure their files from the Battle of Hastings until about 5 or 10 years ago.”
This is probably true—breaking into an office is less of a technical challenge to the government than subpoenaing files from DropBox. But Dropbox creates a different sort of insecurity from scrolls stored in a chest. With Dropbox, copies of the scrolls are held by a third party, and the lawyer has no idea what that third party is doing with them. Aside from the fact that sneak-and-peak warrants are harder to get than subpoenas, at one point Dropbox was claiming the right to use customers’ data. They’ve backed off on that claim, but the making of it was enough motivation for me to switch to SpiderOak.
Further, if anyone but you has access to your encryption key (the case with Dropbox) then anyone who hacks them might have access to the key as well. With Dropbox, you’ve given a third party a copy of all of your scrolls; that third party has a duplicate of the key to your chest, which he keeps in his pocket with a bunch of other people’s keys; and there are a thousand thieves actively trying to pick his pockets. If you can’t imagine a dozen things that might go wrong, you’re not trying very hard.
If you are not the sort of person who would fight a subpoena for your client’s records, I hope that you aren’t defending people. If you are, I hope that you’ll take seriously the risk that Dropbox presents.
When a single data breach could ruin many clients’ lives, “reasonable” security—the standard propounded by Cooperstein and Glover (and apparently approved by bar associations)—is not good enough. Only the extreme will do.
(P.S. if you keep client data on a laptop, go now and encrypt the hard drive so that when your laptop gets stolen you won’t have to worry much about your clients’ secrets.)