Online Tracking & Attorney/Client Privilege

It's been confirmed that we are being tracked. The metadata from our cell phone conversations and our Internet searches is being watched by the NSA for terrorist activity. We are surely still trying to figure out the legal implications of this, and in the legal world, the attorney/client privilege comes to mind.

From the abstract of  a 2011 Virgin Journal of Law & Technology article:
Attorney-client privilege, work-product protection, and the attorney’s ethical requirement to protect confidentiality of client information are at risk  from commercial surveillance of online activity. Behavioral advertising, data aggregation and sale, and government access to commercially assembled profiles have been denounced as threats to privacy and confidentiality interests, but the harm to attorney and client confidentiality is of particular concern. As the legal research and broader information industries shift from print materials to services on the internet, attorneys cannot simply avoid the online environment to protect confidentiality. This article examines the risk from tracking of online legal research and draws two conclusions: 1) Lawyers must take reasonable precautions to protect confidentiality of internet-based research; and 2) Reasonable precautions are elusive due to the constant evolution of tracking technologies and practices, so attorneys should work collectively to update best practices and to evaluate and influence online industry activities so that the time-honored confidential nature of legal representation can be preserved.

This article appeared in 2011 and discusses data tracking for commercial purposes. But attorneys need to be ever more cautious with the confirmed data collection by the government, especially because metadata is currently the least protected form of communication information. Can the government draw conclusions about your legal research in terms of a client's guilt or innocence? It remains to be seen.

In my opinion, one thing is certain: attorneys need to advocate for the greater protection of metadata to effectively protect their clients and the attorney/client privilege. Instead of the law following technology, we need to be on the forefront and preempt any state intrusion into our metadata for improper purposes.


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