A Law Firm’s Guide To Record Retention & Apple’s Fight Against Hacking Killer’s Phone By Court Order

It could be argued that nothing changed American culture more than the cell phone. Just look at TV shows, cartoons, news articles that talk about Millennials, perpetually on their phones. At work, policies about cell phones must be erected. And, now, it’s a point of concern for privacy when it comes to search and seizure by police.

“I had a case where a young man was arrested for videotaping his friend being arrested outside a club in NYC. Police seized his phone. We were afraid that once they possessed the phone, the video would mysteriously disappear since it showed police acting without probable cause and then arresting my client just for videotaping the incident,” Toni Messina in the article, “Criminally Yours: Cops Got Your Phone?” for the Above The Law blog.

“Luckily, because we were dealing with an inexperienced prosecutor, we were able to go One Police Plaza ourselves to get the phone back so it went through no intermediaries, supervisors, or other enforcement personnel. The video was intact, and now forms the basis of a civil law suit for wrongful arrest.”

Messina points out that no matter the level of crime for which you are arrested, police can search your person, your things. Sure, police are supposed to have probable cause, but as Messina’s story previously points out, “probable cause” is relative.

Once you’re actually in custody, your rights to guard information on your cell phone private erode even more. Once arrested, the police can get a search warrant to search the contents of your cell phone—including all those fancy apps with personal data you used for online banking, dating, and working. Your photos and videos are now free game for viewing.

All this with just a simple order from a judge.

Which is exactly what happened with the recent federal judge’s order forcing Apple to help the FBI break into the iPhone of San Bernardino killer Syed Farook. Except Apple CEO Tim Cook opposed the order.

In a letter, Cook wrote, “In the wrong hands, this software [to hack the iPhone]—which does not exist today—would have the potential to unlock any iPhone in someone’s physical possession.”

Cook’s letter emphasized that government overreached by asking for “a backdoor to the iPhone,” reports Greg Botelho, Lorenza Brascia, and Michael Martinez in “Anger, praise for Apple for rebuffing FBI over San Bernardino killer’s phone,” an article for CNN.

How much can the government compel companies to give up? What about citizens?

“All this is why compelling Apple to provide the key to open their phone is tricky,” concludes Messina in the Above The Law article.

“No one’s in favor of terrorism, but that doesn’t mean we should succumb to greater police surveillance, privacy invasion, and forced revelation of data that would otherwise be confidential in our lives.”

This leads—even in a just a small way—to your law firm’s personal records.

Do you know how long to keep records, how they should be stored, and who should have access to various files?

Consistent management of documents and data reduces litigation exposure and regulatory criticism. However, conquering the challenges you encounter in managing, retaining, and disposing information on the road to legal compliance is more complicated than ever.

In fact, as the number of laws and risks related to governing records management continues to increase, it becomes even more paramount that organizations and their counsel brush up on its obligations—legal and moral.

Furthermore, with all companies under scrutiny for how they treat the privacy of employees or clients, law firms should think twice about its practices.

“The road to hell is paved with good intentions,” Messina reminds us of the old adage.

“Privacy is too valuable a right, and the fishing expedition [by the government] such a search would entail [by Apple] isn’t worth the price.”

-WB

Learn more about the complex universe of document retention rules and practicalities in C4CM‘s webinar, “Save It, Shred It, Delete It? Corporate Counsel’s Guide to Record Retention,” on Thursday, March 17, 2016 from 2:00 PM To 3:15 Eastern Standard time.

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