Is your sensitive information sitting vulnerable in the cloud? Don’t think it matters? Just ask Jennifer Lawrence.

Wikileaks has been busy lately. They have been lovingly posting, cataloguing and indexing 30,287 documents and 173,132 emails stolen from Sony Pictures.

If you ever needed proof that Hollywood bigwigs are petty, nasty, venal and downright stupid, you will find it here. Just pop in the name of your favourite star and see all the catty comments made about him or her. Or read the racially insensitive remarks that moguls Amy Pohler and Scott Rudin made about Barack Obama.

While entertaining, the Sony hack has an important message for every computer user, personal and business; go on a digital cleaning spree!

Is your 2004 tax return still spinning on your computer’s hard drive? How about personal data like credit card statements and medical lab tests? Perhaps there are some emails you wrote in haste that you would not like anyone else to see. Get them off now!

If you think you might need them some day, 100 bucks will give you a decent external hard drive or some USB sticks. The main thing is to put data that could cause harm onto a medium that you can unplug, and then actually unplug it and lock it up.

If you have got that radioactive email archived in cloud storage, you will need to clean it up there, too. Those technologies that make our life simpler, like automatic cloud storage, also make it more complicated. Just ask Jennifer Lawrence or the other Hollywood celebrities whose personal photos were stolen from Apple’s iCloud service. It was hacked, divulging not only their naked photos but geo-data pointing to the stars’ homes and favourite haunts.

I recently had the pleasure of participating in a Legal Education Society of Alberta (LESA) event on using electronic evidence in court. The seminar was inspired by an experience that Calgary barrister and solicitor Jack Kelly had in court. “I saw a Crown prosecutor trying to introduce postings from Facebook into evidence and realized there was a need for some education on this subject,” he told the groups of lawyers in Calgary and Edmonton assembled to learn about this subject

In principle, the same crimes, regulations and laws that apply in the physical world hold true in the electronic universe. You can sue for defamation, copyright infringement or fraud, and people can be prosecuted for crimes such as uttering threats and extortion, even if these acts were all done in the virtual world.

However, as I explained to the LESA group, there are some interesting twists. A physical person can almost always be identified. In the online world, people can be anonymous or hide behind pseudonyms. They can try to hijack other people’s identities. Determining who actually made a contentious posting may involve getting a court order, since companies such as Facebook and Twitter only give out that information when compelled to.

Even with a report from the social media company, lawyers need to establish whose fingers were on the keys. I was involved in a case where the Internet Protocol (IP) address led to a computer in a shared office. Other evidence pointed to the likely culprit, but that could not be proven on technical grounds.

People can tell all sorts of outrageous lies online. At the LESA seminar, John Gregory of the Ontario Ministry of the Attorney General raised questions about whether a judge should admit, for example, a Wikipedia entry on Rob Ford or a Google Streetview snapshot showing the availability of parking. He suggested that Wikipedia is not a reliable source for evidence since it can be changed by users. Of course, a streetscape can change minutes after the Google vehicle has taken its pictures.

In my book Technocreep, I explain how a woman in Utah posted comments about an online vendor on the site RipoffReport.com. The merchant objected and pointed to an obscure clause on their site threatening a $3,500 fine if she gave the store a negative review. To avoid it, she was instructed to take down the critical comments within 72 hours. She was told that failure to pay might damage her credit rating. However, RipoffReport.com says they “never remove reports.” The only option they offer is their “VIP Arbitration Service” in which the complaint is reviewed by a private arbitrator, who might even be a

retired judge. The catch? There is a $2,000 “filing fee” for this service.

How did she get out of this conundrum? She sued the company and won substantial damages plus her legal costs. At least partly as a result of this, California passed a law banning “non-disparagement” clauses, effectively protecting a customer’s “right to Yelp” on that review site and anywhere else.

The main takeaways for lawyers and businesspeople is that the online world raises new issues that are still being sorted out in the courts. Judges have generally accepted electronic documents as evidence as long as they are being relied upon in the normal course of business. However, extra steps may be necessary to prove that it is actually the best available evidence.

Social media also opens up many ethical dilemmas. Gregory described a case in which an employer created a fictitious person on Facebook with interests similar to those of an employee who was under suspicion. The employee accepted a friend request and thereby allowed access to a great deal of private information. But was this admissible as evidence? A Quebec administrative tribunal ruled that it was not an acceptable way to gather evidence. However, as Gregory points out, it is common for police to create fake personas as is often done in child-pornography investigations. However, he said, “for civil purposes, it’s not a good idea.”

This is a fast-moving area of law and technology, and social norms are also changing. Currently, only lawyers and the media are allowed to tweet from a courtroom, but how do you stop others from communicating? Is it ethical for a lawyer to look at the Facebook or LinkedIn profiles of prospective jurors? Can an accused delete Facebook posts or their entire profile?

One thing we do know. The next time this seminar is offered, some new technology or hack will have surfaced that will give us plenty more to discuss.

Dr. Tom Keenan is a professor in the Faculty of Environmental Design at the University of Calgary and a well-known speaker and technology futurist. He is the author of the new book Technocreep (Greystone Books, Vancouver) and can be reached at keenan@ucalgary.ca

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