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  • InsideTrack
  • November 16, 2016

    Ethical Dilemmas: Can I Use Web Bugs to Track Email to Opposing Counsel?

    “Web bugs” – email tracking devices – are frequently used by marketers. Can lawyers use them in emails to opposing counsel?
    email streaming out of laptop

    Nov. 16, 2016 – “Web bugs” – email tracking devices – are frequently used by marketers. Can lawyers use them in emails to opposing counsel?

    Question

    I have a friend who works in marketing and helps companies send out newsletters to customers and potential customers by email. When we were out socially he mentioned that the newsletter emails sometimes contain “web bugs,” which are tracking devices that allow the sender to know if the newsletter was opened, what pages were viewed, and where it was opened. I expressed surprise, and my friend laughed and said, “I bet lawyers could get a lot of good info with those things too!” It seems dishonest to me, but if marketers use them, could lawyers as well? I can think of some situations where something like this could very useful.

    Answer

    “Web bugs” were recently addressed in Alaska Ethics Opinion 2016-01. First the committee addressed the question of just what is a “web bug” (also known as “pixel trackers” or “web beacons”):

    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 email 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.

    One commercial provider of this web bug service advertises that users may track emails “invisibly” (i.e., without the recipient’s knowledge) and may also track, among other details:

    • when the email was opened;

    • how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities);

    • how many times the email was opened;

    • whether the recipient opened attachments to the email;

    • how long the attachment (or a page of the attachment) was reviewed;

    • whether and when the subject email or attachment was forwarded; and

    • the rough geographical location of the recipient.

    This provider and similar services give the sender options to alert the recipient that the email contains a web bug and is being tracked, but the sender also has the ability not to disclose this information – which indeed seems to be the main point of the product. If the sender elects not to notify the recipient that the email or document contains a web bug, some email systems or software programs (e.g., Adobe) may either reject the web bug or affirmatively notify the recipient of its existence. Not all email systems or software programs, however, will identify a tracking device and notify the recipient. And, given the speed at which this technology is developing, it cannot be said with any assurance that detection programs will be consistently effective in discovering and reporting web bugs or other tracking devices.

    Have an Ethical Dilemma?

    Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.

    Use of ‘Web Bugs’ a Violation in Alaska

    Unsurprisingly, the Alaska committee then concludes that the use of “web bugs” by lawyers violates the Alaska equivalent of SCR 20:8.4(c), which prohibits conduct involving deceit, dishonesty, and misrepresentation and impermissibly interferes with the lawyer-client relationship, giving the following example:

    As just one example, assume that a client informs her lawyer that she has moved to another state but does not want her whereabouts disclosed to anyone else for any number of reasons. Opposing counsel sends a bugged email to the client’s lawyer that includes an attached document for the client’s signature. When that email is forwarded to the client, the tracking device could improperly obtain and deliver to the sending lawyer confidential information about the client’s general location. Or, assume that the parties are in settlement negotiations and one lawyer sends a bugged email with a draft settlement agreement. Based on the report from the tracking device, the sending lawyer learns that the lawyer focused most of her time on the third page; the lawyer then forwarded the document to a city where the client lives; this recipient focused on the sixth page and then sent the document back to the lawyer; and the lawyer subsequently focused solely on the sixth page of the draft. This gives the sending lawyer access to attorney-client protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important.

    The Alaska opinion concludes that the use of “web bugs is impermissible even if fully disclosed," reasoning that such a disclosure may not be prominent or noticed by the receiving lawyer. The opinion also concluded that the duty to take reasonable measures to protect the confidentiality of information does not require lawyers to assume that emails may contain such tracking devices:

    The Committee notes that Rule 1.6(c) requires a lawyer to take “reasonable precautions” transmitting a communication that includes a client confidence or secret so as to avoid allowing the information to come into the possession of unintended recipients, including information in electronic form. The Committee does not interpret this duty as requiring the lawyer to presume that opposing lawyer will seek to “bug” communications and requiring the lawyer to take active steps to detect and prevent such tracking devices. As a practical matter, with rapidly changing technology and software that may be impractical or even impossible for the receiving lawyer to accomplish. The Committee believes that the only reasonable means of protecting attorney-client communications and work product in this situation is to bar the lawyer sending the communication from using these types of tracking devices.

    Wisconsin’s Rules

    While the relevant Wisconsin Rules are substantially similar to the Alaska rules discussed in the opinion, there is one Wisconsin Rule that may permit lawyers to instruct others to send emails with such tracking devices. SCR 20:4.1(b) permits lawyers to supervise others engaged in otherwise lawful investigative activity that may involve deception when the lawyer has a good faith basis to believe that illegal activity is occurring. While this exception most easily fits prosecutors supervising law enforcement, SCR 20:4.1(b) is not limited to prosecutors.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Ethical Dilemmas: Can I Represent Families and Friends in Other States?, Oct. 19, 2016

    How far can you represent family members in legal matters when they reside in a state where you aren’t licensed to practice?

    Ethical Dilemmas: Can You Interview Nonlawyer Staff with Imputed Conflicts?, Sept. 21, 2016

    The best candidate for your paralegal position works for a sole practitioner who represents the opposing party in a litigated matter. Can you still interview and hire this paralegal?

    For more, search “ethical dilemmas.”


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