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New York State Bar Association
Committee on Professional Ethics
Opinion #820 – 02/08/2008
Topic:
Use of e-mail service provider that scans e-mails for advertising
purposes.
Digest:
A lawyer may use an e-mail service provider that conducts computer scans
of e-mails to generate computer advertising, where the e-mails are not
reviewed by or provided to human beings other than the sender and
recipient.
Code: DR 4-101; EC
4-3.
QUESTION
May a lawyer use an e-mail service provider that scans
e-mails by computer for keywords and then sends or displays
instantaneously (to the side of the e-mails in question)
computer-generated advertisements to users of the service based on the
e-mail communications?
OPINION
Our starting point is N.Y. State 709 (1998), which
addressed the use of Internet e-mail. We concluded based on
developing experience that there is a reasonable expectation that
e-mails will be as private as other forms of telecommunication and that
therefore, under DR 4-101,[1] a lawyer ordinarily may
utilize unencrypted e-mail to transmit confidential information.
We also noted, however, that a lawyer may not transmit client
confidences by e-mail where there is a heightened risk of interception,
and that “[a] lawyer who uses Internet e-mail must also stay
abreast of this evolving technology to assess any changes in the
likelihood of interception as well as the availability of improved
technologies that may reduce such risks at reasonable
cost.”[2]
In recent years, some e-mail providers have offered
free or low-cost e-mail services in which, in exchange for providing the
user with e-mail services – sending and receiving e-mail and
providing storage on the provider’s servers – the
provider’s computers scan e-mails and send or display targeted
advertising to the user of the service. The e-mail provider
identifies the presumed interests of the service’s user by
scanning for keywords in e-mails opened by the user. The
provider’s computers then send advertising that reflects the
keywords in the e-mail. As an example, an e-mail that referred to
travel to a particular locale might be accompanied by an advertisement
for travel service providers in that locale.
Under the particular e-mail provider’s published
privacy policies, no individuals other than e-mail senders and
recipients read the e-mail messages, are otherwise privy to their
content or receive targeted advertisements from the service
provider. Consequently, when the e-mail service provider sends or
generates instantaneous computer-generated advertising based on computer
scans of the lawyer’s e-mails with clients, the risks posed to
client confidentiality are not meaningfully different from the risks in
using other e-mail service providers that do not employ this
practice. We conclude, therefore, that the obligation to preserve
client confidentiality does not preclude using such a service.[3]
We would reach the opposite conclusion if the e-mails
were reviewed by human beings or if the service provider reserved the
right to disclose the e-mails or the substance of the communications to
third parties without the sender’s permission (or a lawful
judicial order). Merely scanning the content of e-mails by
computer to generate computer advertising, however, does not pose a
threat to client confidentiality, because the practice does not increase
the risk of others obtaining knowledge of the e-mails or access to the
e-mails’ content. A lawyer must exercise due care in
selecting an e-mail service provider to ensure that its policies and
stated practices protect client confidentiality.[4] Unless the lawyer
learns information suggesting that the provider is materially departing
from conventional privacy policies or is using the information it
obtains by computer-scanning of e-mails for a purpose that, unlike
computer-generated advertising, puts confidentiality at risk, the use of
such e-mail services comports with DR 4-101.
CONCLUSION
A lawyer may use an e-mail service provider that
conducts computer scans of e-mails to generate computer advertising,
where the e-mails are not reviewed by or provided to other
individuals.
(32-07)
[1] Under
DR 4?101 of the New York Lawyer’s Code of Professional
Responsibility, lawyers are required to preserve the confidences and
secrets of their clients, subject to certain exceptions, and to exercise
reasonable care to prevent their employees, associates and others whose
services they utilize from disclosing such confidences and
secrets.
[3] DR
4-101(B)(3) of the New York Code provides that a lawyer may not
"knowingly . . . [u]se a confidence or secret of a client for the
advantage of the lawyer or of a third person, unless the client consents
after full disclosure." It might be argued that, under the literal
text of this provision, using such an e-mail provider would constitute
improper "use" of a client's confidences or secrets for the benefit of a
third party -- namely, the e-mail service provider that sells the
advertising. We do not believe that the incidental "use" here, or
the benefits derived therefrom, are within the contemplation of the rule
anymore than the profits earned by other providers of services to
lawyers, such as litigation support companies, which handle or are
exposed to client confidences. See
EC 4?3 (quoted below). We note as well that the
advertisements go only to e-mail recipients who are themselves users of
the e-mail service provider and presumably chose to receive the
advertising. The use therefore also does not "disadvantage"
clients within the meaning of DR 4-101(B)(2) by subjecting them to "junk
mail" that the clients have not elected to receive.
[4] Cf. EC 4?3 (“Unless the client
otherwise directs, it is not improper for a lawyer to give limited
information to an outside agency necessary for statistical, bookkeeping,
accounting, data processing, banking, printing, or other legitimate
purposes, provided the lawyer exercises due care in the selection of the
agency and warns the agency that the information must be kept
confidential.”).
Related Files
use of e-mail service provider that scans e-mails for advertising purposes. (Adobe PDF File)
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