Can Lawyers Use Windows Recall? Attorney-Client Privilege Risks Explained

Legal professionals are increasingly turning to artificial intelligence (AI) tools for improved efficiency. Can lawyers use Windows Recall without breaching client confidentiality?

Yes, with some considerations.

Windows Recall is a feature that stores and retrieves snapshots of user activity. It offers convenience but raises concerns for legal professionals, particularly regarding attorney-client privilege and the handling of confidential data. Maintaining confidentiality requires configuring Recall carefully to ensure that sensitive documents, communications, and case materials are excluded from capture and storage.

This article explores Recall’s features, its potential benefits for lawyers, the security of its data-handling practices, the risks it poses to legal practitioners, and strategies to mitigate those risks.

Key Takeaways

• Windows Recall allows users to review past activities through screenshots of previously viewed documents and content. However, it can inadvertently store sensitive legal data, jeopardizing the attorney-client privilege.
• Legal professionals should carefully consider the privacy and security risks when using Windows Recall on devices that handle sensitive client information.
• Spellbook, a legal-specific AI tool used in Microsoft Word, offers a secure, confidential alternative that safeguards client data without compromising privacy.

What is Windows Recall?

Windows Recall is a feature integrated into Windows operating systems that captures snapshots of a user’s activity on their PC. Users can then search for and revisit content they’ve seen before.

What are the Benefits of Recall for Lawyers?

Lawyers often work with large volumes of legal documents. Windows Recall offers several advantages:

1. Efficiency in Retrieving Documents: Recall helps retrieve earlier versions of contracts, briefs, or client communications through semantic search. This reduces the time spent manually searching for specific content.
2. Document Interaction and Management: Recall’s “Click to Do” feature allows you to interact with documents directly, e.g., to copy text from contracts. This can improve productivity in preparing legal briefs and organizing case files.
3. Document Organization: Recall creates a searchable, chronological index of all on-screen activity, which is an effective organizational tool for a high-volume professional. You can easily use search and sorting tools to facilitate easier document access.

Along with Windows Recall, other built-in Windows tools can help lawyers streamline legal work, including:

• File History: Automatically back up versions of important legal files to prevent data loss and track document revisions. It lacks matter-centric organization, audit trails, and the advanced security layers required for client files.
• Version History: Restore previous versions of legal documents using Windows’ built-in version control feature. However, professional legal documents require more secure, immutable, matter-specific version control that tracks every check-in/check-out and change by user.
• Backup and Restore: Recover lost or corrupted legal files with Windows’ Backup and Restore utility. This is needed for all computers, but insufficient as the sole data preservation and disaster recovery plan for a law firm.
• Clipboard History: Access clipboard history to track previously copied text for easy reference. This is great for productivity, but actively risks confidentiality. If you copy privileged text, it then lives in the easily accessible clipboard history until cleared.

Recall provides a powerful tool for organizing content, especially for individuals who work with large volumes of information, such as researchers, analysts, or project managers. It offers a simple yet effective way to track and retrieve past content based on search criteria. However, firms must proactively manage and filter Recall to meet ethical and security obligations.

Is Microsoft Likely to Expand Recall?

Yes, Microsoft has plans to expand the Windows Recall function, integrating it more deeply into Windows AI systems, such as Copilot+ PCs. However, initial backlash over security and privacy concerns, including the unintentional capture of confidential data, unencrypted storage, and easy data extraction, led Microsoft to pause the feature’s widespread rollout.

In response to these concerns, Microsoft overhauled Windows Recall's security architecture, implementing proof-of-presence encryption and secure enclave data management. While these improvements aim to protect sensitive data, Windows Recall is still not fully ready for enterprise-level legal use.

For now, Windows Recall may be a convenient tool for personal or non-sensitive tasks. However, it lacks the robust privacy controls needed for legal professionals to rely on it for managing sensitive client data. The Recall database, even if encrypted, is a locally stored, indexed record of the screen that may be discoverable.

Attorney-Client Privilege Risks with Windows Recall

Security has improved, but the core risk with Windows Recall is that privileged communication, once displayed, is captured and indexed. Its automatic screenshot function may capture confidential case strategies, private emails, or legal documents. Such captures can occur without the user thinking about it. To mitigate attorney-client privilege risks, lawyers can consider:

• Disabling Windows Recall on devices that handle sensitive legal work.
• Incorporating strict device management policies to limit its use in firm environments.

How Does Windows Recall’s Data Security and Storage Work?

Windows Recall stores snapshots locally on a user’s PC, encrypted with Windows Hello Enhanced Sign-in Security, which means only the signed-in user can access their data. The encryption keys are protected by the Trusted Platform Module (TPM), which makes them more secure against unauthorized access. 

Recall also operates in secure Virtualization-Based Security (VBS) enclaves to isolate data, ensuring that it cannot be accessed without the user's explicit permission.

Client Data Risks for Lawyers and Law Firms

Despite security measures, Recall’s local storage approach could still pose risks in the legal environment.

• Screenshots May Capture Confidential Documents or Client Communications: Recall's automatic screenshot feature could capture, index, and store highly sensitive information.
• Insider Access Risks: If an IT or administrative staff member has access to a lawyer’s device or Recall data, there is a risk of unauthorized viewing or manipulation of sensitive materials.
• Potential Discovery Issues: In the event of a lawsuit or investigation, Recall data could be subpoenaed. Any snapshots containing privileged or sensitive information may be disclosed to opposing counsel or the court, potentially leading to ethical and legal violations.

Does Microsoft Use Recall Data to Train AI Models?

No, Microsoft has stated that data from Windows Recall is not used to train AI models. All snapshots and associated data are stored locally and are not shared with Microsoft or any third parties, ensuring that user privacy is maintained. 

However, lawyers should always remain vigilant and monitor any changes to terms of service or data privacy policies that could alter how data is handled.

Ethical Duty of Tech Competence and Confidentiality

The American Bar Association’s Model Rule 1.1 requires lawyers to stay informed about the risks and benefits of technology. This includes understanding how tools like Windows Recall may affect client confidentiality.

Lawyers are ethically obligated to assess technology tools and ensure they do not compromise their ability to maintain the confidentiality of client information.

Policy and Administrative Controls for Law Firms

Legal firms can customize Windows tools to meet the specific needs of legal work and document management. Several policy and administrative controls can help mitigate potential issues with Recall, including:

• Disable Recall via Group Policy or Device Management Tools: IT administrators can configure settings to restrict access to Recall on firm-issued devices to prevent the collection of snapshots. 
• Restrict Installation of Copilot+ Features: Law firms can restrict the installation of Copilot+ and similar tools that support Recall. This helps limit exposure to potentially risky technologies.

How to Disable Windows Recall Feature

To disable the Recall feature on a personal device, lawyers can go to Windows Settings > Privacy & Security > Recall & Snapshots and toggle the option off. This will prevent Recall from capturing any further snapshots. 

For firm-issued devices, IT administrators should disable Recall across all firm devices to ensure no lawyer inadvertently turns it on. This centralized control is the only way to meet the firm's supervisory ethical duties.

Windows Recall Risk Mitigation Strategies for Lawyers

For law firms that choose to use Windows Recall, several strategies can mitigate risks:

• Regularly Purge Recall History: Periodically delete snapshots from Recall to minimize the risk of sensitive information exposure or accidental saving.
• Restrict Recall Use to Non-Confidential Workstations: Use Recall only on workstations that do not handle confidential or privileged information to minimize exposure.
• Adopt Multi-Factor Authentication: Implement multi-factor authentication (MFA) for access to sensitive Recall data to ensure only authorized users can access the snapshots.

Should Windows Recall not be employed, lawyers must make it a habit to save drafts and revised versions of legal documents to prevent data loss, and back up legal documents to protect sensitive client information instead. Automating the backup of client files to external drives or cloud storage further ensures that legal files remain searchable, even when Recall is not relied upon.

Spellbook: Alternative to Windows Recall for Lawyers

Spellbook offers a safer alternative to Windows Recall. It is specifically designed to ensure legal compliance and is:

• Built Into Word: Work seamlessly in Microsoft Word with AI that remembers and assists. 
• Rapid Re-Analysis: Re-review contracts quickly without retracing steps.
• Clause Recall: Insert saved clauses from past deals, tailored to the current document.
• Compliance Alerts: Automatically flags missing or misworded clauses based on legal standards.
• Context-Aware Edits: Receive suggested revisions based on client, contract type, jurisdiction, and negotiation goals.

Legal-specific AI tools, such as Spellbook, allow lawyers to avoid the risks of general AI tools while boosting productivity. Try Spellbook today.

Frequently Asked Questions

Is There a Way to Delete or Manage Recall History?

Yes, users can delete Recall data via system settings, but this does not guarantee complete removal from backups or logs. For sensitive legal work, it is advisable to disable Recall entirely on firm-managed devices.

Should Solo Practitioners Use Windows Recall?

Solo practitioners should carefully assess the data risks associated with Windows Recall. If client confidentiality is a priority, it may be safer to disable Recall or use isolated devices for non-sensitive research.

Does Windows Recall Upload Data to the Cloud?

No, Windows Recall data is stored locally and not uploaded to the cloud. However, it still poses risks from local vulnerabilities, such as malware or unauthorized access by system administrators.