Internet of things conceptThis might be an odd confession for a blogger, but I’ve always been a little leery of technology.  I’m not a Luddite, or anything, but I’m definitely a late adopter.  So I’ve been following the buzz about the coming Internet of Things with some trepidation.

In case you’ve somehow missed it, the Internet of Things (IoT) is eventually going to connect everything around us to the web.  From Forbes magazine:  “Simply put this is the concept of … connecting any device with an on and off switch to the Internet (and/or to each other). This includes everything from cell phones, coffee makers, washing machines, headphones, lamps, wearable devices and almost anything else you can think of.”

Privacy and security concerns about the IoT

This is not sci-fi.  The IoT is already here, and people are worried about it — for instance, the possibility that our TV’s can see us back, or that the video from our baby monitors can be hacked and posted online.

As Dan Harmon, at The Lawyer’s PC (subs. req.) has pointed out, the idea that potentially billions of devices are being connected to the IoT raises multiple concerns about “what lies ahead in this brave new world.  Is privacy possible in an era when personal details about you can be obtained by hacking your coffee maker?  Is security possible when criminals can access your mobile phone records via a ‘smart lightbulb’ installed in your living room?”  (Dan’s further thoughts on the IoT are here, no subscription needed.)

Competence issues for lawyers

You can guess one of the big issues for lawyers in all this — your duty of competence.  Model Rule 1.1 says that you have to bring to bear the “legal knowledge [and] skill .. reasonably necessary for the representation.”  (As I tell the students in the law-school ethics course I teach as an adjunct, this is the very first rule in the rule-book for a reason.)

In 2013, the ABA amended the comments to Rule 1.1 to include a duty of technological competence:  “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

So, the ethics rules demand that you don’t make like an ostrich, like the bankruptcy lawyer who kept on filing paper documents after the court transitioned to electronic-only filing (and received a three-month suspension for that and other misconduct).

Depending on your practice, you may at least need to know about the existence of this digital world if you are going to competently practice law.  For example, on the litigation side, wearable health monitors (think Fitbit®) can track exercise, including sexual activity, if you log in and upload it to the internet.  Is this data something that opposing counsel may ask for in discovery, in a domestic relations case, for instance?  Could it be relevant to the defense of a personal injury case?  Should you be counseling and advising your litigation clients about the availability of information from digital sources like this?

And on the business side, should you be counseling your manufacturing clients about the FTC’s recent moves toward laying the groundwork for future enforcement action against IoT companies that fall short on the privacy-protection front?  (Which most IoT companies do, according to legal-tech guru Brian Wassom.)

The quick take-away:  the IoT is not only coming, it’s already here, and competent representation requires you to consider whether you have the technological knowledge reasonably necessary to deal with it.