No ‘Web Bugs’ on E-mail to Opposing Counsel, Bar Panel Says

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

By Samson Habte

Nov. 1 — 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.

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.”

And the panel didn’t limit its disapproval to the surreptitious use of web bugs. "[E]ven the disclosed use of a tracking device when communicating with opposing counsel is not permissible,” it said.

Beyond Metadata

Several bar committees have issued opinions on whether lawyers can use forensic software to extract metadata embedded in documents received from opposing lawyers. See 28 Law. Man. Prof. Conduct 300 .

But this is just the second ethics opinion to address web bugs, which marketing professionals have long used to gauge consumer reaction to e-mail promotions.

“[T]he technologies are different and address different issues,” the committee’s chairman, Kevin M. Cuddy, said in an e-mail to Bloomberg BNA. Cuddy works in the Anchorage office of Stoel Rives LLP.

“Metadata mining can give the recipient the ability to get additional information about when and by whom a document was created,” Cuddy said. “The metadata is automatically contained in word processing documents unless it has been ‘scrubbed’ by the sender.”

“The use of ‘web bugs,’ on the other hand, requires an affirmative act by the sender to plant the beacon into the e-mail and then to track that information,” Cuddy said. “The bugs can give you information about whether and when a bugged email was forwarded, how long it was reviewed, and so forth.”

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.

Many e-mail providers can identify web bugs and alert users to their presence. But “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,” the committee said.

Unfair Advantage

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.

“[A]ssume that the parties are in settlement negotiations and one lawyer sends a bugged email with a draft settlement agreement,” the committee said, discussing one way that tracking technologies could confer an advantage in litigation.

In that scenario, the panel said, a web bug could reveal which pages of the agreement received the most attention. “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 committee said.

‘Dishonest and Unethical.’

“While the surreptitious use of tracking devices is especially troubling, even the disclosed use of a tracking device when communicating with opposing counsel is not permissible,” the committee said.

“Insofar as the tracking device allows the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, it constitutes an unwarranted intrusion into the attorney-client relationship,” the committee said. “Seeking to invade that relationship through the use of tracking devices (whether disclosed or not) is dishonest and unethical.”

The committee specifically found that the use of such technologies would contravene two Alaska Rules of Professional Conduct: Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation; and Rule 8.4(a), which prohibits attempts to violate the rules of professional conduct, both individually and via third parties.

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

For More Information

Copyright © 2016 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.