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COVID-19 and Virtual Meeting Best Practices

3:20 PM - 18/10/2020

COVID-19 and Virtual Meeting Best Practices

Source: https://www.icemiller.com/ice-on-fire-insights/publications/covid-19-and-virtual-meeting-best-practices/

As companies across the United States continue to navigate issues associated with working from home during the COVID-19 pandemic, it should come as no surprise that the demand for remote video conferencing services, such as Zoom or Microsoft Teams, has risen dramatically. As companies increasingly look to these platforms during this unprecedented time, it is important to bear in mind certain unique legal issues presented by holding and recording video meetings.

Recordings of Video Meetings Can Be Discoverable
Companies should always consider that their internal communications could be discoverable in any current or future litigation; communications during this pandemic are no exception. While companies may be enticed by the possibility of recording a Zoom or Microsoft Teams meeting for future review, they should be mindful that such recordings are subject to document retention policies and could eventually be discovered by the opposing side. For conversations that would typically take place during in-person meetings, a simple teleconference or individual call may be the best communication method to avoid discovery problems.

Maintaining the Privilege and Confidentiality of Video Meetings

According to a recent opinion issued by the Pennsylvania Bar Association, “An attorney working from home or another remote location is under the same obligations to maintain client confidentiality as is the attorney when working within a traditional physical office.” This ethical obligation is no different for in-house attorneys who have also been forced to work remotely during the pandemic. Although the attorney-client privilege ordinarily protects legal discussions between a company and its in-house lawyer, that privilege can be destroyed if there is a third party listening to the conversation. That destruction can occur either during a live stream or by inadvertently allowing a third party (with human ears or even electronic ones such as a voice-activated device) to listen to an otherwise privileged recording. For these reasons, companies and their attorneys should be cautious and avoid having any third parties listening in on a call, and if the company chooses to record the call, it must ensure that no one outside of the company or the lawyer hears any part of the recording or can access the recording once it is made.

Recording Video Meetings and Wiretapping Considerations

Another issue that should be considered prior to recording any video meetings is wiretapping. Although states have different laws on the issue, most states criminalize recording a call without authorization. However, most states require only the consent of one party to the communication.  Accordingly, most companies can record any calls in which they participate, even with people outside of their organization. For companies who live in states that require all-party consent, such as Illinois, they must ask for permission before recording a call. Crucially, this requirement extends to calls across state lines. Therefore, if a person in Indiana, a one-party consent state, calls a person in Illinois, an all-party consent state, the Indiana caller could be held liable for violating Illinois law if he chooses to record the call without permission. For international calls, companies should consult a lawyer before recording a call. Inadvertent violations of international data protection laws, like the European General Data Protection Regulation, could result in significant fines.

Video Meeting Platforms Can Create Privacy and Data Security Concerns

Many popular video-conferencing options, such as Zoom, have been accused in recent weeks of having problematic privacy and security policies. Zoom Video Communications, Inc., in particular, is now facing several lawsuits brought by users and shareholders accusing the company of unlawfully sharing personal data with third parties such as Facebook and of misrepresenting the nature of its privacy and data security practices. 

Further, since the pandemic started, many companies have fallen victim to “Zoombombing,” a disturbing practice whereby an uninvited caller manages to access a public Zoom call and fill it with inappropriate content. Less visible issues with video meeting platforms include opening up company equipment and servers to external changes, poor encryption, and routing through foreign countries. 

Before deciding on specific software, companies should review all options and consult with experts as appropriate. Companies may also want to consider developing policies and procedures specific to remote work to educate their employees about basic security issues and best practices for holding and recording video meetings. Ice Miller’s COVID-19 Task Force and Data Security Privacy team is here to assist.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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