Monday, November 21, 2016

Ethics Opinion: Don't "Bug" Me -- aka On Monitoring Lawyer Behavior (Not Your Own)

Here's a fascinating ethics opinion for the technically inclined: "No ‘Web Bugs’ on E-mail to Opposing Counsel, Bar Panel Says" --
  • "Lawyers may not use “web bugs” to track e-mail communications with opposing counsel, the Alaska bar’s ethics committee advised in an Oct. 26 opinion (Alaska Bar Ass’n Ethics Comm., Op. 2016-1, 10/26/16)."
  • "The opinion is just the second bar advisory to address whether ethics rules permit lawyers to use 'web bugs'—also known as 'pixel trackers' or 'web beacons'—to discover information about how e-mails they send to opposing lawyers have been treated."
  • "According to the opinion, a common web bugging method “involves placing an image with a unique website address” into an e-mailed document and disguising that image “as a part of the document (e.g., part of a footer).” When the recipient opens the document his or her computer “looks up the image” and transmits information back to the sender about how the message was treated, the opinion said."
  • The opinion described “web bugs” as internet surveillance tools that can tell e-mail senders:   
    • whether e-mails they have sent, or attachments to such e-mails, were opened by their recipients;
    • when those messages or attachments were opened;
    • how many times those materials were opened;
    • how long recipients spent reviewing those materials;
    • whether a recipient forwarded those materials to other persons; and
    • the rough geographic locations of the recipients.
  • "Following the lead of the only other bar panel to address this issue, the Alaska committee concluded that 'tracking electronic communications with opposing counsel through ‘web bugs’ impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets.'"
  • "The committee said web bugs can enable lawyers to discover how long opposing counsel or parties spent reviewing e-mail messages and how frequently they viewed them, which can be “a proxy for how important” those opponents may have deemed such communications to be."

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