Lon Berk has written an interesting article on Law360 regarding how Snowden’s revelations could change ethical obligations of lawyers to preserve confidentiality of client communications:
Bar authorities have for the most part concluded that the use of the Internet, including unencrypted emails, does not in and of itself violate this obligation. However, opinions justifying these Internet activities have ultimately been based upon the notion that, because the U.S. government is enforcing the integrity and privacy of Internet communications, there is a reasonable expectation of confidentiality and, hence, a reasonable expectation that the use of the Internet does not violate the ethical obligation to protect client confidences and secrets.
With the revelation, however, that the NSA has been collecting, storing, searching and reviewing content sent over the Internet across international borders, there may be a need to re-evaluate the foundation of these opinions. Rather than guaranteeing the integrity of digital communications, the government appears to be reviewing them. Under these circumstances, the reasoning upon which bar authorities based their approval of the use of Internet-based communications and services may need to be revisited.
This ties into Google’s shocking revelation that users should not have “reasonable expectations of privacy” in the mail they send or receive on Gmail. This contradicts the reasoning in legal opinions that an attorney can expect that Gmail communications (or hotmail or other popular webmail applications) are protecting confidences. In a federal district court case in California, In re Google Inc. Gmail Litigation, Case No. 5:13-md-02430-LHK,
Google made the statement that people can’t expect privacy when sending a message to a Gmail address in a response to a class action complaint filed in multi-district litigation. The suit says Google violates federal and state wiretap laws when the company reads emails to determine what ads to serve based on the message’s content. The class action complaint was filed under seal because it details many of Google’s business practices about the way it handles email.
A highly redacted version of the complaint was filed publicly. Read it here: http://www.consumerwatchdog.org/resources/gmailcomplaint051613.pdf
A hearing in the case, In re Google Inc. Gmail Litigation, Case No. 5:13-md-02430-LHK, will be held before Judge Lucy H. Koh in U.S. District Court in San Jose, CA. at 1:30 p.m., Sept. 5.
“Google’s brief uses a wrong-headed analogy; sending an email is like giving a letter to the Post Office,” said Simpson. “I expect the Post Office to deliver the letter based on the address written on the envelope. I don’t expect the mail carrier to open my letter and read it. Similarly when I send an email, I expect it to be delivered to the intended recipient with a Gmail account based on the email address; why would I expect its content will be intercepted by Google and read?”