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southerncross.jpg Diaspora Legal

Equity, Prosperity and Dispute Resolution Across Borders

Electronic Communications

Communicating by email is an efficient means of communication which reduces the cost of delivering legal services. However, one of the main weaknesses of email communication can be its lack of confidentiality.

Sending communications by email has been likened to sending communications by postcard - the contents of the communication can be easily read by anyone who views the communication in transit. In fact, the situation can be worse - servers can take a copy of the email in transit and store it - in which case it can be read at a later time by someone who obtains a copy of the email taken in transit. Furthermore Australian internet service providers are under legislative obligations to keep "metadata" associated with electronic communications between their clients such as the date and time which an email was sent and the details of the sender, recipient and subject of the email.

This law practice begins from the premise that your communications are kept confidential and legal professional privilege is preserved in respect of communications where that is available. Your formal written retainer with the practice will contain the specific terms about that.

Firstly we do not use external email servers as first or second line receivers for inbound email. You can, in the absence of first or second-line system failure, send emails directly to the law practice.

Transport Layer Security is like putting a postcard in an envelope between postal centres and each centre along the way opening the envelope, re-addressing it in a new envelope until it gets delivered to us. We can only control aspects of how we finally receive the message - not how you initially send it. Our firstline servers will receive using transport level security where the sending system requests it and will request it to do so. if the external system does not provide transport level security then our firstline system will receive an open email from you. Our secondline systems will only receive transport layer secured email. Our thirdline receipt system is an out of jurisdiction third party email host which will receive emails when we are out of action  and forward them to us when our systems are back online. Those systems will try to receive using transport layer security and will send to us using transport layer security.

If you wish to test your or our or our competitor colleagues' systems for email security we suggest you use where you can check this simply and for free. Their website provides a more detailed explanation of email security.

Furthermore we can provide message level encryption of emails we send to you and can receive message level encrypted emails from our clients who request it. This means that even if an email is intercepted by a third party while in transit, it cannot be read without the recipient's private encryption key.

Clients who require this level of security and privacy should feel free to discuss with us the level of protection that this provides.

Finally, the law around legal professional privilege varies between different jurisdictions. Most people sending an email to someone wouldn't have a clue which countries that email passes through before being received by the sender. Even if you do know the countries involved, you probably don't know whether those countries even have a law of legal professional privilege or any privacy laws. In South Australia for example the case of Calcraft v Guest (1898) 1 QB 759 has not been over-ruled. The High Court of Australia remarked in Baker v Campbell :

"One cannot, however, ignore the rather remarkable rule that if the privileged document, or a copy of it, has been obtained by the opposing party, by accident, trickery, or even by theft, it may given in evidence although the party entitled to the privilege or his solicitor could not have been compelled to produce it:"

One of your rights in communication with a lawyer is the right of legal professional privilege. When you use Diaspora Legal you are using a law practice which can and may assist you to protect that right.

Lets be clear, we don't believe in jet contrail or windmill conspiracy theories. However, national security agencies, law enforcement, regulatory agencies, commercial competition and recreational and professional hackers have a wide range of active capability against which practical and lawful precautions ought be taken.

When it comes to disposal of paper records we use DIN 32757-1 standard P-5 level security paper shredders - the standard used by security agencies and at a security level higher than usual for banking, commercial and legal.

Finally, the principal of Diaspora Legal, Mr Greg Finlayson, is on the record as having taken injunctive action including in his own name against government authorities to preserve his client's legal privilege, prevent the unlawful disclosure of his client's information and records and confine the terms upon which regulatory authorities may access client material.