Protection in a technological era

by MARTIN DEAN

Based on my faxes and e-mail, it's clear you are seriously concerned about office security and the protection of sensitive client information. So, here's more on the subject.

Let's talk telephones. Something we all take for granted is the security we have while using the telephone. The cellular industry wants us to believe that we're talking on just another type of telephone. We're not -- we're talking on the radio.

We know that there are both federal and state laws which prohibit the interception of telephone calls.

We also know that cordless and cellular telephone conversations are protected to some degree (California Evidence Code §952). "But," as they say on late-night television, "wait, there's more!"

True, under these codes, cases and statutes, communications with a client are considered privileged. But, folks, that's just not enough.

None of us wants to tell our client: "Sorry, the opposition got our trial strategy/public offering price/expert opinion information, but don't worry they won't be able to introduce it at trial."

With that kind of information, who would need to?

Did you also know that the conversations that you have on a cordless telephone and, of course, a cellular telephone are easily intercepted? How easy? Buy the book, Tune In On Telephone Calls (CRB Research Books), or dozens of others like it, and find out just how easy interception really is.

Because cellular and cordless telephones all broadcast on the FM frequency range, every word can be heard on radios that cost as little as $200 or as much as $2,000.

You used to be able to buy these receivers at Radio Shack until they added circuitry to block the telephone frequencies. But, no matter. According to a lawyer-techie-lunch-pal, reconfiguring the radio to listen in to the forbidden bands is a five dollar job.

And, if you haven't heard the story a gazillion times, you need to be reminded that cellular telephones broadcast on television channels 70-83.

Got an old TV set in the basement with a mechanical tuner that gets these channels? Got a baby monitor in the house? Both of these tuners can listen to telephone conversations in nearby passing cars or your neighbor's most secret cellular telephone conversations, without modification.

Bottom line -- while it is our duty to advise clients about the confidentiality of their communications (Business & Professions Code §6068(e)), we don't often think to ask them about how they want us to keep their secrets. Try these suggestions:

• On a cordless or cellular telephone, say to the client at the beginning of the conversation: "Ms. X, before we have this conversation, I need to tell you that I don't believe that this line is secure and that our conversation may not be private. Would you like to continue this now or see me in my office?" You'll quickly earn the gratitude of your clients (good marketing move) who have not only never thought of this problem, but have never been warned by their lawyers to take more care!
• Don't have cellular conversations in the middle of Wilshire Boulevard, at the health club or even the local deli. Sure, it's nice to show off new technology, but you wouldn't have a confidential discussion with your client in those places, so why is the telephone different?
• Switch to a digital cellular telephone. Without giving such a complex technology explanation that your eyes cross, digital telephony cannot be intercepted or decoded as easily as a simple analog telephone conversation.

In the future, we'll look at security on the Internet. As they say on old time radio: "Stay tuned!"

Martin Dean, a San Francisco attorney, can be reached by e-mail at: mdean@crl.com.