Major advocacy technology trends for 2021 are likely to include artificial intelligence, blockchain and cryptocurrencies, autonomous vehicles, digital health, and … paper court records. US federal courts prohibit electronic filing of highly confidential documents following a recent widespread cybersecurity breach. The parties must submit such documents on paper or as electronic files on a secure electronic device.
In mid-December, the Agency for Cybersecurity and Infrastructure Security (CISA) of the Department of Homeland Security (DHS) issued an emergency policy disclosing a cyber attack on the networks of local, state and federal authorities as well as private companies. CISA said malicious actors used SolarWinds’ Orion® product source code to hack into these networks. (SolarWinds describes Orion as “a powerful, scalable infrastructure monitoring and management platform designed to simplify IT management for on-premises, hybrid, and software as a service (SaaS) environments in a single pane of glass.”) Earlier this week, United State intelligence agencies – including the FBI, NSA and the office of the director of the National Intelligence Service – said the attack was “likely of Russian origin”. In response to the cyber attack, the United States courts suspended national and local use of SolarWinds Orion.
The cyberattack appears to have compromised the network infrastructure of the United States Courts Administration Office, the agency that develops and manages the case management and electronic case files system known as Case Management / Electronic Case Files (the “Admin Office”). ). In 1996, the Northern District of Ohio was the first federal court to introduce the CM / ECF system. Since then, more than two hundred United States courts have implemented the CM / ECF system, which allows parties to file electronically and the public to view court documents.
In most patent and trade secret cases – and in many complex commercial cases – the parties request the court to register a protection order to regulate the creation and disclosure of trade secrets, as well as confidential, proprietary documents and other information. In order to promote a general policy in favor of public access to court records, most documents are made available to the public. Documents that contain genuinely sensitive or confidential information are usually filed and retained under seals, often with edited versions filed on a case’s public file. As a result, what is filed under Siegel often contains the parties’ best-kept technical, financial, or personal information, the disclosure of which could have potentially catastrophic consequences for the parties who provided that information.
Federal agencies are currently conducting a security audit of their systems to determine the extent and impact of the attack. The administrative office assesses weaknesses in the CM / ECF system that disclose or possibly disclose sensitive or confidential documents that have been filed under seal. Meanwhile, new procedures announced by the Administration Office on January 6, 2021 require that highly sensitive documents (HSDs) filed in U.S. courts must be filed on paper or as files that are placed on secure electronic devices such as USB drives are loaded on which they are stored a secure, self-contained computer system at the competent court. Individual courts have their own local procedures to implement for such requests. For example, on January 7th, the Eastern District of Virginia issued an announcement instructing practitioners not to “seal anything electronically in CM / ECF until further instructions from that court.”
While new and advanced technologies are likely to dominate the legal profession in 2021, some technology avoidance best practices may emerge to help keep client confidential information safe. It is the same with paper: what was old is new again.
Copyright 2021 Squire Patton Boggs