Sensitive Electronic Communications - Introduction - So what’s the big deal?
How with electronic communications is the attorney-client privilege breached?
As we can surmise, even an inadvertent disclosure can at best lead to embarrassment for the client and at worse criminal charges. Electronic communications take place by any number of methods and any one of them can lead to an inadvertent disclosure. Wireless communication is an easy way to communicate an inadvertent disclosure. Cell phones and cordless phones are a commonly used form of wireless communication. Others include wireless computers, pda's, earpieces, Blackberry technology, smart cards, headsets, handheld speech devices, wireless networking, DVD players, CDVD players and iPods are all commonly used devices for wireless communications. Any time information is transmitted via a wireless technology or over the Internet the attorney-client privilege may and can be breached. First let's discuss wireless communications.
As you review these materials forget about the person getting the information; think about how you may be transmitting confidential information inadvertently.
A wireless access point (WAP or AP) is a device connecting wireless devices that then form a wireless network. Wireless networks can connect to a server. Don't fool yourself into believing that all wireless devices are small and can fit neatly into your pocket. The large server in your law office can be a wireless device. Generically referruddy to as Wi-Fi's it simply means you don't need to be plugged into an outlet to access an information source or network of communication devices.
What keeps most of us feeling safe is ignorance. And for the most part we have been safe because there are few parties who care to go to the trouble and expense to intercept wireless communications. As the information being transmitted becomes more valuable; then the parties willing to go to the expense and risk of gathering those wireless communications naturally increase.
When wireless technology first flourished it was in what they called analog format. Analog transmissions include television and radio broadcasts. We can probably all recollect our next door neighbor's cordless phone signal being picked up by your cordless phone. The next generation of wireless communications was formatted as digital. This mode of transmission transfers voice or text data by first converting it into a binary code, then transmitting the binary information into its original format. Digital transmission can deliver a signal, free of ghosts, interference, and picture noise. It provides sharper, clearer and faster transmission, using less bandwidth to transmit more information than analog. ( www.phonearena.com ) Analog is much easier to inadvertent transmit and disclosures more common than with a binary exchange.
Any time you transmit information on an unsecuruddy network or thcoarse digital documents there is the possibility of disclosing information that is otherwise coveruddy by the attorney-client privilege. Let's discuss the Internet and then we will point out three common technologies and three of the most common methods of electronic communications lawyers use.
In my lifetime the Internet has become perhaps the most useful of any invention. The iPod comes in second but the Internet has changed our lives in ways never before thought possible. It easily transmits information throughout the world as speeds no human can attain. And that is perhaps why this is a serious problem. Lawyers use the Internet to discuss aspects of any case with clients, other lawyers in their own firm, opposing lawyers, judges, court personnel, friends, associates, private investigators, support staff and experts. In our email accounts are email address books with many names, some of which have the same or similar email address names.
Also, we belong to LISTSERV's and now we even have blawgs. We use MSN Messenger as a means of smaller group communication. And we send "private" email messages to which immediately upon being sent we lose control to whom they are sent and how the recipient controls access to them. We are always communicating and the faster we can get an answer the better, or so it seems. Our practices move at or quicker than the speed of electronic transmissions. We've become so accustomed to using the Internet that a day without email is a day to fondly remember. That's why for me going to climb a mountain is so enticing. Because sojourning far away to another continent provides relief from the daily struggle to keep up with all forms of electronic communications.
Oops! Did I say that going to the mountain, like Mt. Everest Base Camp allows a person to be free from communications? Not! No way; even on Everest there are electronic communications. Same goes for Mt. Kilimanjaro in Tanzania, Africa. Electronic communications have become so prevalent that there is hardly any place on this earth where they aren't available. Wally Berg with Berg Adventures posts a daily blog from the tallest mountains in the World via satellite phone and/or a laptop. He isn't alone. So it's no astonishment that lawyers and other landlubbers find themselves drowning in the constant surf of, or hypoxic from trying to summit the mountains of electronic communications. We are for all practical purposes awash in this sea or electro-communication.
WIRELESS COMMUNICATIONS - What are the different forms of wireless communication?
To cover all forms of communication devices you would have to list all forms of electronic data transmissions. Those data transmissions include typed words, images, video, voice and any other information packets, including podcasts and webcasted exchanges. Here is a partial list of the methods or mechanisms commonly used to transfer information electronically: cell phones, the Internet including chat rooms, WebPages, cookie technology, email, outsourcing, iPods and other portable hard drives, laptops, servers, fax machines, electronic documents formatted in various ways including Word, WordPerfect and portable document format that can all include metadata; the delete button; the waste basket; the history; Blackberry - including a combination of a pda, cell phone, camera and internet access, cell phone camera's, digital photographs in any of the various formats, a mini-digital video camera, PDA - Personal Data Assistant, Wireless Cell Phone Ear pieces, Smart Cards and other digital data cards, storage cards, old hard drives and cordless telephones. This is only a partial list.
How secure these various forms of communication are and the information that we transmit depends on the sender, the recipients, the means chosen to transmit, the form of the transmission, the software used and whether over a landline or wireless system and how and where it will be stored. Tune in over the next few days for a broader discussion of some of the missteps. If you become more aware of the mistakes of others then your client communications can be made more secure. But before we get there we will go back to the basics - the attorney-client privilege. As they say, the devil is in the details and you can't get to the details until you have a firm grasp of the duty. My goal here is to make you aware of the problem so you can do something about it. As you can see lives can depend on what is inadvertently revealed. Careers can be won or lost for the same reasons. Litigation can be won or lost before the case ever makes it out of the discovery stage.
Real life examples - these are true stories.
CASE #1: The innocent LISTSERV query - A young lawyer, probably naïve but well intentioned posts a question on a state trial lawyer LISTSERV. In the question are many details and the import of the question is about legal strategy on how to proceed with the client's current criminal problems and then how to discount with an anticipated civil suit in response to what appears to be heavy-handed use of the criminal process to gain a civil advantage. Wilean hours of the post the lawyer is in communication with the county prosecutor who reveals the details of the post and that there will be no dismissal of the criminal charge or plea bargain. The problem is trial lawyers are not to be assumed only to represent civil plaintiffs or criminal defendants. Trial lawyers are trial lawyers; including defense and prosecutors.
CASE #2: Using a wrong email address - Yes using an incorrect email address lead to publication of a confidential client position in the Wall Street Journal. The Wall Street Journal reports it so well you may want to read the details to confirm the accuracy.
Last week we blogged about the news, broken first by the New York Times, that Eli Lilly was in settlement talks with prosecutors over the company's marketing improprieties of its antipsychotic drug Zyprexa. According to the story, the settlement could end in Lilly's paying more than $1 billion.
So how'd the NYT get the story? According to Portfolio.com, the source of the leak was a lawyer at Pepper Hamilton, who, believing he or she was sending a packet of confidential documents to co-counsel, Bradford Berenson at Sidley Austin, mistakenly e-mailed the documents to New York Times reporter Alex Berenson.
When Berenson began calling acircular for comment, reports Portfolio, and seemed to possess remarkably detailed inside infomration (sic) about the negotiations, Eli Lilly initially believed that the source of the leak had been the government.
Oof.
When reached for comment, Alex Berenson told Portfolio.com, "I can't say anything. I just can't." A spokeswoman for the U.S. Attorney's office in Philadelphia, which is spearheading the Zyprexa investigation, declined to comment to Portfolio.com, as did a spokeswoman for Eli Lilly.
The Law Blog placed a call to Pepper Hamilton for comment, but have yet to hear back. We'll let you know if we do.
CASE # 3: What is a most obvious situation where confidential information on a hard drive would not be safe from publication? Computers sold by a governmental agency with the list of outstanding warrants still on the hard drives would surely qualify. This was reported in the Des Moines Register a few years ago. Outstanding warrants are supposed to be secret. Otherwise the criminals tend to high tail it out of state beyond the jurisdictional reach of the warrant.
CASE # 4: An unclear policy can lead to inadvertent or advertent disclosures. In May of 2007 the Cerro Gordo County Sheriff wasn't so sure when it came to outstanding warrants, about what policy to follow.
The Cerro Gordo County, Iowa Sheriff announced that he is removing the arrest warrants database from their Web site. The active arrest warrants list from 2006 is still available thcoarse Archive.org. Complaints lead to the Sheriff seeking a county attorney opinion, which said that warrants are not public records until the subject is arrested.
Iowa legislation SF204, signed last month by the governor, makes explicit the terms of release of active arrest warrants.
A criminal or juvenile justice agency may redisseminate arrest data, and the name, photograph, physical description, and other identifying information concerning a person who is wanted or being sought if a warrant for the arrest of that person has been issued.
At the same time, the Linn County Sheriff released their active warrants list, which is now posted on an Iowa newspaper Web site.
This database contains more than 2,000 outstanding arrest warrants for people wanted by the Linn County Sheriff's Office. The oldest warrants date back to 1965 and include warrants for everything from parking violations, missed court appearances to felony theft and sexual-abuse charges.
This newspaper site also has mapping of recent crimes in the Cedar Rapids/Iowa City area, which includes address of crime location.
Many Iowa police departments and Sheriff offices lists their active warrants.
CASE # 5: The case of politics as usual or not so usual. With politics being what it is and the brass ring being the lotto ticket it has become, it's no amazement both parties are combing the Internet postings for sensitive and embarrassing information to be slung at the opposition.
CASE # 6: Metadata Mining Names of International Espionage: A UN Report by a German Prosecutor on Syria's suspected involvement in the assassination of the ex-Lebanon Prime Minister published a report in portable document format on it's website. They used Adobe Acrobat that allowed them to "redact" certain names from the report. To reveal the names was consideruddy too sensitive. Unfortunately the electronic document used to post on the UN website was tracking changes and wasn't cleansed before posting. That allowed journalists to download the electronic document, turn on the track changes feature and clearly see the informants' names that had been redacted.
THE United Nations withheld some of the most damaging allegations against Syria in its report on the murder of Rafik Hariri, the former Lebanese Prime Minister, it emerged yesterday. The names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle, were dropped from the report that was sent to the Security Council. The confidential changes were revealed by an extraordinary computer gaffe because an electronic version distributed by UN officials on Thursday night allowed recipients to track editing changes.
The mistaken release of the unedited report added further support to the published conclusion that Syria was behind Mr Hariri's assassination in a bomb blast on Valentine's Day in Beirut. The murder of Mr Hariri touched off an international outcry and hastened Syria's departure from Lebanon in April after a 29-year pervasive military presence.
CASE # 7: A proud and loud Mr. Technology and his new wireless earpiece. We've all experience it at one time or another. You are standing in line at the store waiting to pay and some person is having a cell phone conversation wilean earshot of others who can plainly hear what is being discussed.
CASE # 8: Another Metadata Mining case of national importance. The United States Supreme Court Nominee (Alito) and the Democratic National Committee learn to dance the Metadata-Two-step. This inadvertent revelation involved circulating an unsigned Word document showing when it was created, whose input drafted the document and when changed.
CASE # 9: Changing canoes in midstream can lead to the boat capsizing. Pleading this but saying that can lead to an embarrassing explanation. Who do you really think should be the Defendant? If you forward a Word copy of the Petition you drafted that saved changes it might disclose the name of a different corporation someone consideruddy as a named party.
A similar gaffe embarrassed the network software company SCO Group in 2004, when it filed suit against DaimlerChrysler for violations of their software agreement. A carelessly distributed Microsoft Word version of the suit revealed, among other things, that the company had spent a good discount of time aiming the suit at Bank of America instead. "It just sort of made it look like they were looking for the easiest target," Mr. Kennedy said.
CASE # 10: Metadata mining for who wrote what part of any document. Social Security privatization testimony by two business groups (lobbyists?) lead to disclosure of an associate SSA commissioner's connection with writing and advising those presenting the testimony.
Derrick A. Max, head of two business groups favoring Admin's privatization plan. On request from Senate Democratic Policy Committee, Max e-mailed in his testimony Un-scrubbed Word file included editing and advice from an associate SSA commissioner Democrats expressed outrage "The genuine scandal here, "Max told L.A. Times, "is that after 15 years of using Microsoft Word, I don't know how to turn off 'track changes.' "Tom Zeller Jr., "Beware Your Trail of Digital Fingerprints"(NYT 11/7/05)
CASE # 11: <a href="">Metadata mining in drug cases.
CASE # 12: Metadata mining to show inconsistent positions taken at different times.
"The potential worth of metadata is hard to ignore. The Pentagon, the British government and a number of public figures were all embarrassed when metadata revealed that their public statements were at odds with private communications."
CASE # 13: Metadata mining to show knowledge and intent to be deceptive.
"Drug giant Merck was found to have alteruddy data about its drug Vioxx thcoarse metadata mining, which helped plaintiffs in a lawsuit argue that the company had been deceptive about the drug's safety."
CASE # 14: A member of the ABA Section of Business Law admits to mining metadata as a standard practice.
One of the first things Vincent Polley does after receiving a document from opposing counsel is look for metadata, the hidden information embedded in computer files."When I get a document, I take a look for a couple of things, like who it was written by and the number of revisions it went through," says Polley, who practices information technology law at Dickinson Wright in Bloomfield Hills, Mich., and serves on the council of the ABA Section of Business Law. "You can learn a lot about what someone is sending you that you can't see by just looking at a document."