Technical Surveillance is the use of surreptitious audio and/or video devices used to record or transmit information. These devices, colloquially known as ‘bugs,’ can be used to steal proprietary information, trade secrets, and privileged communications. These devices can also be used in targeting individuals or companies for physical attack and have been used by stalkers and perpetrators of domestic violence. In recent years surveillance devices have become cheaper and more readily available on the internet. Most legal practice areas involve sensitive or confidential client information, and some cases involve emotionally charged subject matter. Attorneys should be aware of the risks and understand what steps they can take to mitigate technical surveillance.
Technical Surveillance Countermeasures (TSCM) are defined by the National Institute for Standards and Technology as “techniques to detect, neutralize, and exploit technical surveillance technologies and hazards that permit the unauthorized access to or removal of information.” Many companies that have trade secrets to protect maintain in-house security departments, control access to their facilities and information, and conduct TSCM sweeps of work areas. Law firms are far less likely to have these resources at their disposal and for this reason, they may be targeted by an adversary of their client who is dissuaded by the client’s security measures.
The first step for an attorney is to conduct a risk assessment. The risk assessment should start with questions like who might be trying to steal information, what information is at risk, where is the information stored, why would an adversary be incentivized to steal it, and how they would accomplish this task. A risk assessment will also examine the parties involved in a case and their motive, means, and opportunity. A TSCM consultant can help develop an effective risk assessment. Once risk is identified a plan can be developed for detecting surreptitious devices.
While TSCM may seem like something out of Hollywood, it happens surprisingly often, especially when there is an incentive for parties to gain an advantage and surveillance devices are readily available. Legalis Intelligence Advisors has TSCM certified personnel in-house and, while we do not openly market this service, it is something we offer to our established clients.