Rejected posting to [e-mail]

[Cem Kaner-2]

 >>If it were possible for them to access any data on their
 >>customers' PC's, without the customer's permission, I
 >>expect it would be headline news - and I can't find any
 >>such news.

"Customer permission" is such an odd concept these days.

Read the license agreement that comes with the software. I have not read
Vista's, but I have read licenses for other MS products (e.g. media
player). You grant them permission to examine your files when you click
the clickwrap. This is how we grant permission for people to hijack our
machines for botnets, for people to install spyware on our systems, and
for vendors to examine all of our files. (Whether this is genuine
"permission" in any non-1984 sense of the word has become an
unfashionable question over the last 5 years. It appears, these days, to
be enforceable and therefore not unconscionable.)

In any case, this problem is old news. It didn't make headlines several
years ago, just some threads on lists like this one.

I think this type of access poses a serious ethical problem, especially
for attorneys who counsel clients in the software industry or who do
business with software companies.

In particular, I don't see how any attorney can assert that their
documents are confidential, given that access has been granted to a
third party who is under no duty of confidentiality.

When I was actively representing clients, I used a non-Windows system
for all client data and correspondence, specifically to avoid this
fundamental problem.

-- Cem Kaner

-----Original Message-----
 > >From: Roland Perry <roland@...>
 > >Sent: Apr 12, 2007 7:16 AM
 > >To: CYBERIA-L@...
 > >Subject: Re: [Fwd: Re: [ETHICS] Microsoft Vista]
 > >
 > >In message <461D29F8.60907@...>, at 14:33:28 on Wed, 11 Apr
 > >2007, Carol Shepherd <arborlaw@...> writes
 >> >>Interesting post on Solosez.  Could the degree of access to an
 >> >>attorney's computer data which is allowed by Vista to Microsoft, be a
 >> >>problem for attorney-client privilege or client confidentiality?
 > >
 > >I think you need to provide a cite for this "degree of access ...
 > >allowed to Microsoft".
 > >
 > >If it were possible for them to access any data on their customers'
PCs,
 > >without the customer's permission, I expect it would be headline news -
 > >and I can't find any such news.
 > >
 >> >>Discuss.
 >> >>
 >> >>Carol Shepherd
 >> >>
 >> >>-------- Original Message --------
 >> >>Subject: Re: [SOLOSEZ] [ETHICS] Microsoft Vista
 >> >>Date: Wed, 11 Apr 2007 09:48:53 -0400
 >> >>From: J. Robert Thompson <jrtesquire@...>
 >> >>Reply-To: J. Robert Thompson <jrtesquire@...>
 >> >>To: SOLOSEZ@...
 >> >>References: <017401c77c2a$759a36e0$0eebf70a@DESKTOP>
 >> >>
 >> >>A computer guru friend of mine made the suggestion that the degree
of access
 >> >>to an attorney's computer which Vista allows to Microsoft
(apparently they
 >> >>could access literally anything) may be a serious violation of the
duty of
 >> >>confidentiality, and possibly make the attorney-client privilege
 >> >>inapplicable to any document stored on an internet-accessible
computer.
 > >
 > >--
 > >Roland Perry



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>If it were possible for them to access any data on their customers' PCs,
>without the customer's permission, I expect it would be headline news -
>and I can't find any such news.

"Customer permission" is such an odd concept these days.

Read the license agreement that comes with the software. I have not read Vista's, but I have read licenses for other MS products (e.g. media player). You grant them permission to examine your files when you click the clickwrap. This is how we grant permission for people to use our machines in botnets, for people to install spyware on our systems, and for vendors to examine all of our files. Whether it is "permission" in any non-1984 sense of the word has become an unfashionable question over the last 5 years.

In any case, this problem is old news. It didn't make headlines several years ago, just some threads on lists like this one.

I think this type of access poses a serious ethical problem, especially for attorneys who counsel clients in the software industry or who do business with software companies.

In particular, I don't see how any attorney can assert that their documents are confidential, given that access has been granted to a third party who is under no duty of confidentiality.

-- Cem Kaner

-----Original Message-----

>From: Roland Perry <roland@...>
>Sent: Apr 12, 2007 7:16 AM
>To: CYBERIA-L@...
>Subject: Re: [Fwd: Re: [ETHICS] Microsoft Vista]
>
>In message <461D29F8.60907@...>, at 14:33:28 on Wed, 11 Apr
>2007, Carol Shepherd <arborlaw@...> writes
>>Interesting post on Solosez.  Could the degree of access to an
>>attorney's computer data which is allowed by Vista to Microsoft, be a
>>problem for attorney-client privilege or client confidentiality?
>
>I think you need to provide a cite for this "degree of access ...
>allowed to Microsoft".
>
>If it were possible for them to access any data on their customers' PCs,
>without the customer's permission, I expect it would be headline news -
>and I can't find any such news.
>
>>Discuss.
>>
>>Carol Shepherd
>>
>>-------- Original Message --------
>>Subject: Re: [SOLOSEZ] [ETHICS] Microsoft Vista
>>Date: Wed, 11 Apr 2007 09:48:53 -0400
>>From: J. Robert Thompson <jrtesquire@...>
>>Reply-To: J. Robert Thompson <jrtesquire@...>
>>To: SOLOSEZ@...
>>References: <017401c77c2a$759a36e0$0eebf70a@DESKTOP>
>>
>>A computer guru friend of mine made the suggestion that the degree of access
>>to an attorney's computer which Vista allows to Microsoft (apparently they
>>could access literally anything) may be a serious violation of the duty of
>>confidentiality, and possibly make the attorney-client privilege
>>inapplicable to any document stored on an internet-accessible computer.
>
>--
>Roland Perry
>
>
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>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>Need more help? Send mail to: Cyberia-L-Request@...
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Need more help? Send mail to: Cyberia-L-Request@...
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