Arbitration Tips-N-Tools (TNT): Round 5

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In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about maintaining privacy and safety in online arbitration (OArb), especially in a digital world and faced with the complexities of the Covid-19 pandemic.

Round 5: What are your 3 top tips and/or tools with respect to maintaining privacy and safety in online arbitration (OArb) – especially in the digital era and complexities of Covid?

Responses:

A) Theo Cheng –

1. All participants should take the time to become familiar with general principles of maintaining cybersecurity and adopting cybersecurity protocols in arbitration proceedings. In addition to the many CLE programs being offered on this topic, some good places to start are the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration and the AAA-ICDR Best Practices Guide for Maintaining Cybersecurity and Privacy.
2. For remote proceedings, participants should stay abreast of the latest privacy, security, and confidentiality issues accompanying the video teleconferencing platform that the parties have agreed to use. It is every participant’s responsibility – and, for advocates, it may also be an ethical imperative under professional responsibility rules – to monitor and become knowledgeable about the security vulnerabilities that may be present on the platform.
3. It is a common misunderstanding that arbitration proceedings are somehow automatically private and confidential. Although certain provider rules impose confidentiality obligations on the tribunal and the provider, generally, absent a contrary agreement between the parties, nothing prevents participants to an arbitration proceeding from disclosing what transpires in the proceeding. This is especially true for third-parties who may be called to testify. Absent an agreement binding them to confidentiality, they are generally free to disclose what they have experienced during the evidentiary hearing.

B) Daniel Urbas –

1. Impose awareness for privacy and confidentiality from first exchanges, require parties to acknowledge privacy and confidentiality (unless contract does not require it for arbitration)
2. Require parties adopt protocols for secure transfer of documents by secure online repositories or password-protected or encrypted transfers
3. Underline that e-mail addresses in e-mail exhibits qualify as personal information for senders/recipients and require care when transferring and forwarding such documents as exhibits during arbitration

C) George Friedman – 

1. No Hidden coaches: Have the participants disclose who is present in each location. See CPR’s Model Order.
2. Use Secure, Zoom Access:Having an arbitration or mediation “bombed” by an interloper must be avoided at all costs (see this FBI warning, for example). And disable the “record” feature for participants; we don’t want the hearings showing up on YouTube. Last, set up a separate Zoom meeting for arbitrator deliberations (vs. just tagging this on to the last hearing).
3. Consult Guidance: Each of the major ADR providers has posted extensive tips and tools for conducting online arbitrations and mediations. See, for example:
   • AAA
   • CPR
   • FINRA
   • JAMS

D) DeAndra Roaché – 

1. Use a secure Virtual Private Network (VPN) or personal hotspot when connecting away from your office.
2. Log-out of other devices when conducting business, disconnect from the IoT (Internet of Things i.e. doorbell, game systems, Smart TVs, etc. Hackers enter the weakest point which is usually one of the IoT devices
3. Purchase Cybersecurity Insurance 
4. Do regular backups of data/data dumps to a secure server or external hard drive
5. Update and stay current on all software updates and security patches.
6. Disable electronic voice-assisted devices when teleworking
7. Require only the witness and relevant individuals to participate in the video conference, and that these individuals must be identified.
8. Ensure that access to the video conference connection is adequately protected, e.g., by using the platform’s security features and turning on its security settings.
9. Prohibit recording of the video conference made outside the presence of the arbitrator(s), and limiting the circulation of authorized recordings so that they are not accessed by non-parties.
10. Use a privacy screen on your computers/tablets when working in public spaces
11. Encrypt thumb drives and any other removable devices

Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week…..