Don’t let Alexa zoom you into trouble: Tips and traps for businesses working remotely

By Erv Switzer and Mary Ann Wymore

In light of COVID-19 and state and local stay-at-home orders, many businesses have greatly increased the number of remote workers. First-time remote workers — and some seasoned remote workers — need to be aware of hidden pitfalls in the gadgets and apps they are using while working from home.

1. Don’t zoom into trouble: Many workers are participating in their first large-scale virtual meetings using easily downloadable apps on their phones or computers. As they discover the features, they may notice how easy it can be to record a meeting. But keep in mind that in some states, recording is illegal unless all participants consent to being recorded. The laws vary as to whether being told of the recording is sufficient, as opposed to consenting to the recording. For example, Missouri is a one-party consent state, while its neighbor Illinois requires both parties to consent. Restrictions on how a recording may thereafter be used vary as well. Violation of the all-party-consent recording laws is typically a criminal offense and has implications in civil litigation as well. For litigants who may be involved in mediations conducted via virtual meeting platforms, a participant could be exposed to court sanctions for using the recording feature. Do not cavalierly try out the recording feature without express consent of all people involved. If recording is important, seek legal advice on the laws of all of the states where participants may be located before using this feature.
2. Alexa, are you listening? Workers must understand how their home digital assistants listen to, record and share information. Be aware of what starts activity and what the activity can include. With televisions, radios and virtual classrooms and meetings occurring in a residence, remote workers should make sure their devices will not be listening or recording without the knowledge of participants.
3. Speaking about privacy ... Remote workers also need to be mindful of the privacy implications of using electronic video and telecommunications platforms in the face of diverse state privacy statutes. Growing privacy and security concerns have already prompted members of Congress to urge the Federal Trade Commission to examine how Zoom handles and secures users’ data. Before using such electronic teleconferencing or videoconferencing platforms, be sure to read and understand all terms of use and privacy policies before you click to accept them. “Free” apps sometimes come with a price: relinquishing privacy rights. Seek legal advice if you are confused or have any question about these policies and terms of use.
4. Unsolicited calls, emails and texts are legally restricted from home and personal devices. Unsolicited calls, texts and faxes are legally restricted when they have a commercial purpose under the Telephone Consumer Protection Act (TCPA) and various state laws.  It does not matter that a personal smartphone is being used if the purpose is commercial.  Being desperate to make a sale is not an excuse. Even non-commercial calls or texts such as goodwill messages can run afoul of the law if made to emergency numbers or to cellphones using an automatic telephone dialing system or containing a pre-recorded message. Seek legal advice regarding such communications before embarking on any electronic marketing or goodwill campaign.
5. Keeping secrets. Lawyers and other businesses obtain and keep confidential information on their customers, clients and prospects. Confidential information is typically secured and eventually shredded or securely disposed of in office settings. Workers new to the work-from-home experience must consider whether their trash disposal is secure from dumpster-divers. Some lawyers have been embarrassed when users of recycling or trash bins noticed that confidential records were in the container and decided to post photographs of the material on social media. Also, confirm with your employer that any personal computers or devices have security features.

The extensive work-from-home experience is new to many. Be careful of the traps.

Erv Switzer is the Greensfelder General Counsel and a former Chief Counsel with the Missouri Attorney General’s Office. Mary Ann Wymore is a litigation and intellectual property officer whose practice includes data privacy issues and the TCPA.

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Greensfelder Attorneys at Law  |  St. Louis, MO |  Chicago, IL  |  Southern Illinois

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