Lawyers and Encryption - A Convergence of my Professional Interests
Slashdot covered an interesting NY Times article which discussed how privacy and confidentiality are so important to lawyer and their clients, and yet how encryption software is seldom used by lawyers and their clients. As a law student who majored in computer science, with an interest in cryptography, I find this to be an interesting thing, insofar as the overall effectiveness of encryption is concerned, as well as whether lawyers should still prefer face to face meetings with their clients.
Is encryption more secure than face to face meetings?
The computer scientist in me would argue that encryption is inherently more secure, since sound mathematical principles such as the difficulty in factoring large composite numbers seems like safer things to rely upon than a promise by some 3rd party that there will be no eaves dropping. The realist in me, however, would assert that a person wanting to break encryption would not try to break the encryption itself, which is likely impossible to do in even a million years, but would instead use some other means to steal the encryption key or to steal the data while it is unencrypted. This could be done through hidden microphones/cameras, keystroke loggers on a computer, etc. A determined person could even used more exotic means, such as the so called “tempest” attack, whereby the radio emissions from a computer can be used by a person at a distance to reconstruct what is displayed on the computer’s screen. This leads me to conclude that while encryption has its place, neither encryption nor face to face meetings can prevent a determined person from intercepting confidential communication, unless the parties communicating are at least as determined to maintain their confidentiality.
The Value of Face to Face Meetings.
I also believe that there is value inherent in face to face communication, which cannot be enjoyed through electronic communication. Body language, facial expression, and subtle differences in tone of voice can all convey valuable information, all of which can be lost during electronic communication. Having to respond nearly instantaneously to questions, rather than having time to think them out and revise answers, can also lead to more information about a person’s state of mind being exchanged during face to face communication. Finally, I would hazard a guess that those people willing to lie to each other may be less willing or able to lie to another person’s face. I could go on, but it should be clear that there are benefits of face to face communication which, at least for now, cannot be replicated in electronic communication.
The above reasoning would lead me to conclude that electronic communication, whether encrypted or not, certainly has it place for lawyers, as does face to face communication. As technology becomes more prevalent in the legal field, questions like this will arise more and more frequently, and I look forward to pondering them.
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