Speaker Key: PB Phil Brown, DW David Whelan
PB: Hi, it’s Phil Brown, and I’m here with David Whelan, and today we’re going to talk about texting.
DW: You might’ve thought that texting was just something that teenagers did, but it’s an interesting way to send short messages from one person to another, and it’s a very common thing for people with smartphones and devices to use in order to have quick conversations. It can also be a really tricky thing for lawyers if their clients start to reach out to them using the technology that they’re accustomed to on their smartphone, but that may not actually be very useful for lawyers who are interacting with their clients.
PB: Texting, also known as SMS, is a little different than email for a few different reasons.
DW: Yes, one thing is that you don’t have the same big application to send email, so you’re losing some of that functionality. So, the basic part of a text is obviously the text, and you can only type a certain number of characters, so it’s an abbreviated message. You may be able to attach something from your smartphone or your device, like a photograph that you’ve taken, that can be attached to the SMS message and then sent to your contact.
PB: And you can also send a short video, but sometimes when you try and attach a video to a text message, the video gets abbreviated, and you may only get half of that video or a quarter of the video sent along. Of course, some people have multimedia turned off on their phones so they’re not able to accept the video on the other end and it may just vanish into space. You won’t ever know whether that video has been received.
DW: That’s a great point. If you don’t have data enabled or the right plan on your phone you may find that while you can send and receive text messages, you may not necessarily receive any of the rich attachments that are linked to them.
PB: Yes, and a number of smartphones and other devices have built-in texting applications.
DW: In most cases, when you turn on your phone you will have an ability to phone someone. The phone will also have some sort of messaging application which will allow you to type a message and then choose someone from your contacts in the same way you would’ve chosen them to make a telephone call, and you would send the message that way.
PB: Just like email or sending faxes, you can send them to the wrong recipient.
DW: Yes, and you wouldn’t necessarily know unless you went back and checked to see who you’d sent it to and looked at the message. The other challenge is with the lack of encryption that surrounds most of the texting apps as well as texting on Android phones and Apple phones. When you send a text message, you’re essentially sending plain text so you are potentially exposing it as it’s being transmitted; this is probably the same low concern that most lawyers would have about email. But when it gets to the other end, if you have someone whose phone is accessible to other people or which is then lost, then that text message can then be accessed by other people.
PB:We also have to at least mention the fact that these texts (just like emails) are going through company servers; maybe it’s your law firm server, and/or your cell phone provider’s server along the way, so there are a number of points of vulnerability.
DW: The one device that seems to have a little bit more complicated or rich environment for texting is the BlackBerry. You can use what’s known as BBM or BlackBerry messaging, in order to transmit in an encrypted format. You can also use something called PIN-to-PIN messaging on the BlackBerry.
PB: This built-in encryption protects your information travelling from one device to the next, even though it’s flowing through a provider. However, one of the potential vulnerabilities is BlackBerry’s encryption key, which my understanding is it’s essentially available to BlackBerry, and they can decrypt your messages anywhere along the way. That’s one thing to be aware of - your provider typically holds the keys even if they’re offering you encryption in whatever application you’re using.
DW: One of the things that has become common with texting on phones is to skip the app that was put in by the actual phone maker and to download an app from the app store, either for your iPhone or for your Android phone, and to use something that has many more features. One of the interesting things with this is that you can do things and send text messages that are much more like an email – much richer – but could actually increase the potential problems if you were sending or receiving information from a client using those apps.
PB: Yes, there’s more hands in the pie with some of these third party apps. And again, potentially confidential information is vulnerable in other places.
DW: If you have a teenager, you can ask them which one they use, and that may be a good list of apps to avoid. Some, like textPlus, use a third party server for the message and if you send an attachment like a picture, they use an additional server that doesn’t use their own domain name to store that image. So you are actually starting to spread your information out over a number of different places.
PB: We’re talking about lawyer and client communications, which traditionally is one of the vulnerabilities in terms of lawyer negligence in the sense that clients may say they’ve changed instructions and the lawyer didn’t do what they were asked to do or told to do or whatever. So, let’s talk a bit about backups.
DW: Assuming that you are not actually texting with your clients, one of the things that you can do is this – you might end up texting with your client, but even if you don’t, you can use a backup app – an SMS backup app – from the app store (there tends to be free versions available), but you can pay for one if you require certain features. The SMS backup app will allow you to go into the SMS messages, or the text messages you’ve received, and back these up as a text file which you can store on your computer. So that, if the client says, “I sent you a text message and this is what I said...”, which wasn’t actually what was in the text message, you will have a file so that you can show the client the text message and it doesn’t require you to have responded to the text message.
PB: Not everyone is going to be using a backup app or has the technical ability to get the right app to convert things to text and so on, so there are other options.
DW: One of the options is to take a screenshot, just like you might on your computer. What it does is it makes a picture of whatever is on your screen. So you would open up your phone to your text message so that you can see the message that the client sent, and then you would use the screenshot or screen capture function on your phone.
PB: I think you should caution your client that you don’t plan on talking to them via text message, first of all, because it’s going to be hard to get a record of the texts later. I suppose, if it ever gets to the point of litigation, you would be able to subpoena those records from the phone companies because all of the phone companies have a record of all of your texts. The other point is because we’re dealing with lawyer client communication and you do get the occasional text, if you’re not taking a screenshot or you’re not backing up your texts, at a minimum you should probably be doing a memo, either to file or a memo to your client confirming what that conversation was.
DW: That’s a great idea. Lawyer client communication is a huge issue, and the more you can communicate with your clients, the better. Texting is probably not one of the tools that you want to use on a regular basis, and if you do use it or receive texts from your client, try to keep them to things as simple as, sure, I’ll call you at 3:00, or basic information about when you will interact with them, rather than talking about details of the actual matter.
PB: Great, thanks very much.
DW: Thanks, Phil.