Web Bugs

A recent opinion from the Alaska Bar Association Ethics Committee deal with the ethics of “web bugs.”

The Committee…concludes 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. Doing so reflects, at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct.  Sending “bugged” emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6 and violates Rule 8.4(a) and (c).

The question

Issue Presented: Is it ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?

Conclusion: No. The use of a tracking device that provides information about the use of documents – aside from their receipt and having been “read” by opposing counsel – is a violation of Rule 8.4 and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.

Background: A member of the Alaska Bar recently received an email with a “web bug” from opposing counsel. A web bug is a technology tool that tracks certain information about the document to which it is attached. A common method of “web bugging” – used in e-mail newsletters to help track readers, for example – involves placing an image with a unique website address on an Internet server. The document at issue contains a link to this image. The image may be invisible or may be disguised as a part of the document (e.g., part of a footer). When the recipient opens the document, the recipient’s computer looks up the image and thereby sends certain information to the sending party.

Keys

The use of “web bugs” and other tracking devices is fundamentally different from the permissible recording of conversations by a lawyer. Unlike the telephone recording situation, the Committee believes that it is entirely reasonable for a lawyer to assume that emails, documents and other electronic communications received from an opposing lawyer will not be “bugged.” And, consistent with Opinion 88-4, the Committee likewise believes that it is unethical to use tracking devices on electronic communications.

Most importantly, a core difference from the recording of conversations is that discussions with opposing counsel are not privileged or confidential. Whether or not the conversation is recorded, the communication has been knowingly shared with opposing counsel. This is not true with a tracked electronic communication, especially when the tracking device is undisclosed. If the tracking device is performing as designed, a lawyer will have no idea that the sending lawyer is tracking the lawyer’s handling of the communication. The tracking device could enable the sending lawyer to learn how much time the receiving lawyer spent reviewing the communication – including even specific pages of documents – or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.

(Mike Frisch)