A recent court decision against search engine giant Google lends some clarity to the question of whether lawyers can ethically use public Wi-Fi networks to conduct client business. For years, lawyers have used their portable devices at public Wi-Fi hotspots at coffee shops and airports to communicate with clients, witnesses, co-counsel, and opposing counsel about confidential matters. But has that been ethical? Moreover, has it been wise?
The ethics question may be the easier to answer. According to a post on the always useful (even if you are not an Apple fanboy or fangirl)
iPhone JD blog, the recent court decision against Google strongly suggests that the use of public Wi-Fi by lawyers is consistent with the obligation to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."
In a guest post by Professor Dane Ciolino of Loyola Law School in New Orleans, LA., it is argued that the federal Ninth Circuit decision in
Joffe v. Google, Inc., provides guidance to lawyers using Wi-Fi networks. In ruling against Google, the Ninth Circuit considered whether the federal Wiretap Act covers communications over Wi-Fi networks. The answer was "yes."
That means that the unauthorized interception of communications sent over public Wi-Fi networks is a violation of the federal Wiretap Act imposing liability on any one who “intentionally intercepts . . . any wire, oral, or electronic communication,” subject to some exceptions. See 18 U.S.C. § 2511(1)(a).
According to Prof. Ciolino based on the
Joffe decision:
"...it is now 'reasonable' for a lawyer to assume that the communication of client information over a Wi-Fi network is 'confidential' — after all, any interception by a would-be interceptor would violate the federal Wiretap Act. Therefore, it is no less reasonable for a lawyer to communicate over (now) federally-protected Wi-Fi networks than to communicate over federally-protected wireless phone networks, landlines and fax lines. In all cases, of course, fit the means of communication to the sensitivity of the information."
OK. But is it wise to use public Wi-Fi networks for confidential communications even if doing so is not going to subject a lawyer to disciplinary proceedings? That is a different question.
The amount of care a lawyer must take in assuring that his or her Wi-Fi borne communications remain confidential may depend on the nature of the information transmitted. If you are confirming a court date or appointment with a client or witness, much of that content is already public information accessible in the court file by anyone with an interest in asking. In most cases, no one but the parties themselves will have sufficient interest in that information. The risk associated with interception of such information is minimal.
On the other hand, if you are legal counsel for Coca Cola and are entrusted with "the formula," transmitting a copy via email using the public Wi-Fi at your local Starbucks is a very bad idea. Most confidentiality concerns will fall on a continuum between these two extremes.
One solution is the use of a low-cost personal VPN service. A VPN (Virtual Private Network) is a secure tunnel through the Internet that should keep your confidential communications from prying eyes and ears even when using a public Wi-Fi hotspot.
There are several personal VPN services available. I use
Witopia primarily because it can be configured and used on all of my portable devices including a Windows laptop, Chromebook, iPad, and Android phone. I pay $49.99 annually. Another inexpensive choice at $39.95 annually is the well-named
Private Internet Access.
Most personal VPN services include downloadable software for Windows and Mac as well as instructions for configuring the VPN on portable devices such as those running iOS, Android, and the Chrome OS. There is some configuration involved when setting up the VPN to work on portable devices, but the step-by-step instructions are easy enough to follow.
Before you grab your portable device and head to the local coffee shop to do client-related work, take about 10 minutes to select, subscribe to, and install a personal VPN. That is the wise choice.