Many lawyers have asked me what I think about Zoom right now for lawyers. I will share some thoughts.
Two Ways to Look at Zoom and Video Communication
As someone who is both an ethics lawyer and into technology, I am of two minds about the Zoom situation.
Zoom lacks a certain level of encryption and maintains questionable privacy practices. These two issues concern me. A great deal. Let’s look at some of the specific issues.
Zoom has fixed some of its privacy practices, but I still have some serious concerns. Zoom employees apparently can and do look at certain things. Marketing analytics seem to be a heavy part of Zoom, and there really seems to be a fundamental lack of privacy consideration. So much so that the Attorney General of NY is investigating Zoom’s practices right now. In addition, a lawsuit was filed in California over some of those practices. There is also word of what is called Zoom bombing, which is people guessing your Zoom link, logging in, and shouting hateful messages. This can be prevented by setting a password though.
On the other hand, based on my use of numerous platforms, I think Zoom remains the easiest and most accessible. This matters because many lawyers have clients who are not comfortable with technology. Especially those who work with the elderly. If our clients are not comfortable with more complex technology, they will not have the opportunity to take advantage of video communication.
Here in Pennsylvania, and in many jurisdictions, our obligations related to technology and confidentiality require us to strike a balance. That balance means we look at what is reasonable under all of the circumstances. This includes the likelihood that confidential communications will be intercepted and whether adding additional levels of security will make the technology unusable for our clients (and ourselves). We have a safe harbor under our rules as long as we consider the various factors and make a reasonable choice.
My Thoughts
Here’s what I can tell you. Video tools that have end-to-end encryption are more secure than Zoom. Video tools that are more respectful of privacy considerations are also more secure than Zoom.
However, it is also clear to me that for some clients, Zoom may be the easiest option for them. For the average lawyer in the average case, it is unlikely that your Zoom conversations would be of interest to anyone. If you have higher profile clients, your conversations might be interesting and more likely to be intercepted. You need to balance the needs of your clients against these issues. And you need to take steps like using passwords or waiting rooms to keep people from breaking into your chats. Of course, this begins to make Zoom as complex as the other services, which leads to the question, why not use the other services?
Create a Disclaimer and Explain the Risks
Lawyers should create a disclaimer for their use of Zoom with clients and make them aware of the risks. Actually, lawyers should make disclaimers for all types of communication, since they all have risks. Especially email, for example.
Consider Your Clients’ Needs and Capabilities
If you have clients who are technologically capable, you should consider using something that is more secure than Zoom. If you have clients who are famous (or infamous) or handle matters that attract attention, don’t use Zoom. Use something more secure.
Don’t Record Zoom Using Zoom
Some of the issues I have read related to Zoom that concern me involve the recording capability. My recommendation is not to record Zoom meetings using Zoom itself. Instead, record it locally. For example, you can use a program like Camtasia to locally record video. Regardless of how you record, make sure you inform everyone that you are recording before you start and after you start. This way the warning gets recorded once you have permission to record. In Pennsylvania, we are an all consent jurisdiction. It is best to let people know you are recording. In other jurisdictions that are one party, it is still best to alert people.
Consider Alternatives to Zoom
There are quite a few alternatives to Zoom. I am not really sure why Zoom has experienced the attention it has. GoToMeeting and GoToWebinar, for example, have been around a long time and they are pretty easy to use. Look into them. WebEx is another platform, owned by Cisco. I have used it a couple of times recently and I can tell you that it seems a bit slower to start and I noticed more buffering, but it is more secure. Facetime is available for those who use an iPhone or an iPad. Skype is available to pretty much everyone. Microsoft Teams is a great collaboration tool that comes with Office 365 and is available for free for 6 months. I haven’t had a chance to look into it, but a friend and colleague told me he is looking into a tool called Signal. A quick search on Google, “Zoom Alternatives” leads to more results than I can count. Just make sure, whatever you choose doesn’t have the same type of problems Zoom is alleged to have.
Conclusion
In a normal world, I would tell lawyers, don’t use Zoom to engage in any confidential communications. But we are not in a normal world right now. So, I won’t tell you that. I will tell you that I would be very cautious about using Zoom. And I would make sure to add protective features that make it harder for outsiders to break into your conversations. In the meanwhile, I will keep my eyes open for other options and for changes in Zoom’s technology and privacy policies.
Note: My friend and colleague Sharon Nelson wrote this post reviewing how you can use Zoom securely. Also, Zoom is promising to fix its problems. We will see.
This post was updated on April 5, 2020.