I spent Friday afternoon in the auditorium of the Washington State Historical Museum in downtown Tacoma in a CLE (Continuing Legal Education) course on Electronic Records Management. It wasn’t just an academic exercise.
The course had three components. The first was on “the cloud” and its ramifications not just for data storage, but for the way that we do business over all. It was less about the practicality and uses tied specifically to how attorneys practice law, and more about the importance of having a plan on how it should be used, a serious examination of the question if the collaborative capabilities it presents are something that we can use in our profession to increase efficiency and efficacy, understanding how the service provider works, how long the information should be preserved, and whether or not the limitations and strictures of how the cloud is operated can be reconciled with the requirements of our profession. The sheer amount of uncertainty regarding many of these issues is one of the reasons why I’m not gung-ho on this idea and ready to buy into it just yet, as much as I like the idea of being able to log in from anywhere, read any file our office maintains, and use our software without having to have it loaded on whatever device I might be using.
The second portion dealt with some of the emerging social media case-law. It is an area with many worthy questions, but few concrete answers yet. It an area of life where technology has made a lot of things possible that previously weren’t. Questions include what data can and should be able to be subpoenaed from social media outlets in discovery, as well as the more obvious admissibility and authentication issues. It isn’t as simple as you might think at first blush, and branches out to cover other electronic media such as emails and text messages. Probably one of the most alarming moments came when the presenter reminded us that under Washington law, there are a number of questions that a prospective employer can’t ask of a potential employee in an interview. This is something that isn’t considered especially controversial by those in the profession, for obvious reasons. But, he pointed out that much of this information can be discovered by nosing around in someone’s Facebook profile, if it isn’t limited or locked down. Suddenly, with a few keystrokes, you can find out that the young woman you were interviewing is part of a fertility support group and is trying to get pregnant, or the applicant’s religion, or that they are politically vocal, and have a viewpoint that opposes yours. Now discrimination on the basis of any of these facts is generally illegal, which is why they can’t ask, but now they can tell anyway, and the only way to avoid this is avoid exercising the right of freely associating with others across this medium. There was also some discussion about how a Facebook posting with comments can meet the criteria of a public meeting, and how that creates unique governmental challenges for those charged with preserving such information. The other major shock was how the NLRB has actually intervened in some social media/employment cases on behalf of non-union employees, ruling that employer’ actions against employees for violating social media policies, even those drawn up at great expense by law firms who carefully consider the limitations and prohibitions written into these policies, have been held to violate these workers’ rights. I imagine that the law will be interesting as it develops over the next few decades, but I think for better or worse, it will have a noticeable impact on the notion of privacy that many people have.
The final segment was a Q and A session with the presenters, and some records management professionals. In many ways, I found this to be the most alarming portion of the entire afternoon. Of particular interest was a story relayed about how one lawyer had really been dragged in to cloud management of their practice by a client, who was convinced that it would be more efficient, and refused to pay for the attorney to do it their own way. While he clearly told a tale which he believed had a happy ending (in the end, the attorney liked it, and wanted to do it with all of their clients), I looked around and realized that many of my peers did not recognize the obvious ethical issues raised by the story he told. Then he went on to say that the implications of cloud computing would change the culture. He pointed out that there is an entire generation which has lived its life in online social media, and how it was unavoidable that they would end up have very different notions of privacy than we would, and how that fact was probably going to end up having the biggest impact on law as we move forward. I admit, I’m not comfortable with the notion, but this is in part due to the inherent impermanence of electronic data. I don’t like the idea of a society that is so reliant on technology that knowledge can be lost with a blackout, EMP, or other interruption. And yet this is the world we are already moving to occupy. We can carry an entire library in a small tablet, but without power, you have nothing but an attractive paperweight. But there is also the lack of hard documentation. I can’t help but wonder what future generations will think of us, as there will be no paper records as there have been in the past. No reams of correspondence between average people. Fewer newspapers. No habit of written journals. Heck, even more and more textbooks are electronic in nature. And being part of a profession that requires records and redundancies, I find that I think about this more and more. Especially when, like after a storm, our internet connection became annoyingly intermittent.
Something to think about when the center of our center of economic commerce knocked out for two days last week due to weather.