Are our cellphones violating solicitor-client privilege?

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Are cellphones violating solicitor-client privilege? Probably.

Solicitor-client privilege requires confidentiality between lawyers and their clients. But this confidentiality could be violated by our cellphones. For example, we are frequently downloading apps onto our cellphones. These apps often gain access to our camera, contacts, microphone, and location.

It is not a far stretch to see how an app on a cellphone could be used for a nefarious purpose. Even to blackmail a lawyer.

For example, a cellphone’s microphone can easily be turned on to record conversations, without the user knowing it. Similarly, a cellphone’s email can be hacked. As we are often connecting our cellphones to wireless networks that we are unfamiliar with.

The best way to preempt potential privacy breaches is for cellphones to build in privacy by design. Perhaps with building in a mechanism that alerts users when apps are proposing to gain access to sensitive information, in the moment it is happening. And when the app is selling your data for a profit. Rather than just a warning hidden in the fine print.

Allowing apps to bury privacy violating features in terms of use that no one wants to read, including lawyers, is ultimately a disservice to users and a potential threat to confidentiality.

(Views are my own and do NOT represent the views of any organization.)

Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?