Peer to Peer Magazine

Fall 2019

The quarterly publication of the International Legal Technology Association

Issue link: https://epubs.iltanet.org/i/1172342

Contents of this Issue

Navigation

Page 35 of 63

What Are the Risks To You and Your Firm? "We have been in touch with firms that were being tracked on active litigation, situations where hedge funds were mining this data to anticipate M&A deals, and where individuals were being targeted by disgruntled former employees. Journalists are using these things all the time. It's literally the wild west out there." According to John Anthony Smith, Chief Listening Officer of Conversant Group, "And law firm security teams are often so focused on traditional email security that they overlook this very serious reconnaissance threat. It's privacy, it's compliance, it's physical safety, and it's cybersecurity." Sounds Terrible, Surely Our Attorneys Aren't Spying on Others Most firms are shocked to learn about the tracking that is occurring in their environment both inbound and outbound. Inbound we often see 70% of delivered emails being tracked. For outbound emails, lawyers do not need anyone's permission or help to start tracking emails they are sending. We were recently asked to review the AmLaw 100 Firms to see if we could quantify how many of these firms had attorneys that were using trackers in emails sent out to other attorneys. We were shocked at the result – at least 84 of the AmLaw 100 had tracked emails leaving their environment. Think about that. ILTA D O W N L O A D T H E I N F O G R A P H I C https://bit.ly/2ky8Fy9 » Email Tracking: Problem Hiding in Plain Sight B Y M A R K G R A Z M A N I n May 2017 the American Bar Association revised its formal opinion on securing communication of protected client information given the legal profession's increasing reliance on technolo. The opinion put the burden on lawyers and those who assist them to take responsibility and reasonable measures for preventing inadvertent or unauthorized information disclosure. Email tracking is an area that faces increasing scrutiny. Several states have issued opinions raising serious questions about both the ethics and legality of attorneys using email tracking tools. What Are Email Trackers? They are not read receipts, which are consensual. Rather, email trackers are invisible to their targets and are triggered simply by opening an email. The common theme is they trigger the targets' device to fetch embedded content from a remote server. This embedded content can be an image with a 1X1 pixel, but more often these trackers are more sophisticated including embedded formatting, fonts, silent audio files, and even CSS media tags. These trackers stay with the emails as they get forwarded, meaning that the original sender has visibility into which emails are being forwarded and to whom. Why Are Attorneys Using These Trackers? We expect marketers to be tracking our email opens, but why are attorneys using these tools against each other and other counter-parties? MessageControl asked this question to dozens of attorneys who admitted to using trackers, and here were a few of their response: • "I want to see if someone forwards an email to an insurance firm. If they do, I know a settlement is coming and I negotiate much harder." • "I have used trackers to get a judgement of willful patent infringement because I could prove the email was read, forwarded to several parties and opened several times." • "I use them to see which expert witnesses might be involved. In one instance, I was able to prove the opposing attorney forwarded a confidential email to an expert before that expert was contracted on the case." P E E R T O P E E R : I L T A ' S Q U A R T E R L Y M A G A Z I N E | F A L L 2 0 1 9 37 WHAT STATE BAR ASSOCIATIONS SAY EMAIL TRACKING : Professional Ethics Violation or Business as Usual? misrepresentation. New York Opinion 749: "Lawyers may not ethically use available technology to surreptitiously examine and trace email." The opinion also states that email tracking violates code DR1-102 (A)(4) prohibiting lawyers from engaging in conduct "involving dishonesty, fraud, deceit or Alaska Opinion No 2016-1: "Sending 'bugged' emails…with embedded tracking devices constitutes an impermissible infringement on the lawyer's ability to preserve a client's con dences or secrets." Pennsylvania Opinion 2017-300: "…the use of a web bug which opposing counsel cannot determine is present violates Rules 4.4 (Respect for Rights of Third Persons) and Rule 8.4 (Misconduct)." Read receipts are allowed because there is clear noti cation and consent, unlike email tracking. Illinois Professional Conduct and Advisory Opinion No. 18-01: The opinion concurs with the de nition of misconduct in both the New York and Alaska opinions in terms of email tracking invading the client-lawyer relationship, but goes further saying: "Other opportunities for intrusion into the representation of a client could arise from the monitoring of the email communications between the receiving lawyer and others involved in the representation…" Is email tracking consensual? No, email tracking is not consensual. Email tracking is hidden in the email, unlike read receipts where the user must consent. What is revealed by email trackers? • When and how often the message was opened • How long someone reviewed it • Whether the email was forwarded and to whom • Location of the user when they opened the email • Device ngerprint What does the ABA say? Nothing speci cally on email trackers yet, but some states cite ABA rules as part of their opinions. In particular, ABA Rule 1.6 Duty of Con dentiality, ABA Rule 4.4 Respect for Rights of Third Persons, and ABA Rule 8.4 (a) (c) Misconduct. Is email tracking actually illegal? There is disagreement on this question. Some relevant information comes from the state opinions themselves: • New York said "Although the state bar association does not have jurisdiction over questions of law, the committee suggests that misuse of some technology, particularly the use of email "bugs" may violate federal or state Communications Privacy Act, 18 U.S. §2511. "Interception and disclosure of wire, oral, or other electronic communications are prohibited." • The Illinois committee compared the use of tracking software to that of the surreptitious recording of phone calls, which is illegal in Illinois without the consent of all parties, unless certain exceptions apply. How prevalent are email trackers in the legal industry? Several large law firms have reported over 70% of the emails their employees open have some form of email tracking embedded in them.

Articles in this issue

Links on this page

Archives of this issue

view archives of Peer to Peer Magazine - Fall 2019