Instant Messaging – Turning Toys Into Tools

Presented by:

•Marla K. Brock – Bilzin Sumberg•Kajetan Koci – Loeb & Loeb•Kevin Sullivan – Cohen & Grigsby

Instant Messaging Bridging the Gap of Understanding Between Technology and the Law

www.bilzin.com

Marla K. Brock Corporate Associate

August 23, 2007

The Emergence of Instant Messaging

• A revolutionary form of communicating.• Immediate and instantaneous.• Widespread availability beginning in 1997,

promulgated by AOL.• Supplants telephone conversation and

written correspondence.

Increasing Popularity of Instant Messaging

• Online Services for Buyers and Sellers.• Real-time interaction.• The race to communicate valuable

information.

Concerns Related to Instant Messaging

• Creating an auditable trail.• Protecting Governmental Interests (Domestic

and Foreign Affairs.• Protection of Intellectual Property.• Deterring and Preventing Certain Activities.

Confidentiality ObligationsA lawyer should take "reasonable steps" to secure confidential information against "inappropriate disclosure" by such lawyer (including lawyer's associates or agents).

Confidential client information must be "acquired, stored, retrieved, and transmitted under systems and controls that are reasonably designed and managed to maintain confidentiality."

If the lawyer knows or has reason to believe that the means of communication is susceptible to interception, the lawyer must advise the other party (or client) of the risks of such interception and the risk of loss of confidentiality.

Opinion 1: Attorneys may communicate with clients using unencrypted email under most circumstances.

Opinion 2: Absent client consent or waiver, email should be encrypted to prevent a breach of confidentiality or the same precautions should be observed for email as of cellular or cordless phone communications.

Generally Held Opinion: Attorneys should consult with the client and follow client instructions with respect to transmitting highly sensitive information by email.

Encryption vs. Non-EncryptionApplicability to Instant Messaging

Regulation

• Legislation in highly-regulated industries provides a "back door" to regulating instant messaging.

• The goal of regulation is to prevent fraud and manipulation, protect financial solvency and to prevent and deter abusive practices that may amount to violations of rules of custom and trade practices.

• Gramm-Leach-Bliley Act of 1999• Role of Sarbanes Oxley and the need for internal

controls.

Best practices for law firms and companies

• Records management (SEC and NASD recordkeeping requirements)

• Compliance supervision• Records retention and preservation• Developing efficient search and retrieval methods• Deleting records• Duplicating storage• Ensuring privacy and protecting confidential

information• Promulgating a disclosure protocol

Questions /Comments

Thank You!

www.bilzin.com

Marla K. BrockTel: 305-350-7302

mbrock@bilzin.com

Instant Messaging Turning Toys into Tools

LOEB & LOEB adds Value.

August 23rd, 2007

©2007 LOEB & LOEB LLP

Kajetan KociIT Manager

What tools are in place?

Microsoft Live Communication Server (LCS)

Federated, Secure, Encrypted Messaging Platform

Windows Messenger 5.0 Supports: Aol, MSN, Yahoo Instant Messenger

Optional: Archiving Agent LCS IM Archiving agent saves messages in SQL DB

LOEB & LOEB adds Value.

Future Concerns

Security Threats

Inbound Threats: Worms, Viruses, Spyware Outbound Threats: Loss of IT Control, Loss of Intellectual

Property

Regulatory/Compliance Issues How long should IM messages be kept?

Putting a $ Value on Collaborative Communication Cost of Long Distance calls, Exchange Mailbox Size (First

Tier Storage Costs)

LOEB & LOEB adds Value.

How will IM fit into your Organization?

Cultural Differences

User Training

LOEB & LOEB adds Value.