Alaska may have only about 2,500 active resident lawyers, but its bar ethics committee has become just the second authority in the country to weigh in on the practice of “bugging” the e-mail of opposing counsel. The committee disapproved of this spy method in an opinion issued in late October, saying that it violated the Last Frontier’s version of Model Rule 8.4, which prohibits dishonesty and misrepresentation.

Don’t let this bug you

A “web bug” is a tracking device consisting of an object embedded in a web page or e-mail, that unobtrusively (usually invisibly) reveals whether and how a user has accessed the content. Other names for a web bug are web beacon, pixel tracker and page tag.

I had never heard of web bugs before, but apparently they are universal in the Internet world, enabling e-newsletter editors, for example, to get metrics on how many readers open the newsletter, and what pages they look at. But web bugs can be used for less benign ends, including getting a leg up on opposing counsel.

As described by the Alaska opinion, web-bugging involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail. “The image may be invisible or may be disguised as a part of the document (e.g., part of a footer.) When the recipient opens the document, the recipient’s computer looks up the image and thereby sends certain information to the sending party.”

The information available from a web bug is wide-ranging, including:

  • when and how many times the e-mail was opened
  • how long it was reviewed (including whether it was in the foreground or background)
  • whether the recipient opened attachments
  • how long the attachment or a particular page of the attachment was reviewed
  • whether and when the e-mail and/or attachment was forwarded
  • the approximate geographical location of the recipient

Web bugs are different than meta-data (which has been the subject of many ethics opinions). Meta-data is automatically a part of documents created with word-processing programs, unless the user scrubs it. In contrast, bugging e-mail that you plan to send requires an affirmative act.

According to the opinion, web bugs operate surreptitiously, and “it cannot be said with any assurance that [existing] detection programs will be consistently effective” in detecting them.

“Unwarranted intrusion”

The Alaska ethics committee determined that using web bugs to track e-mail sent to opposing counsel “impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets,” and it represents an “unwarranted intrusion into the attorney-client relationship.”

For instance, knowing how long and how often your opposing counsel has viewed a bugged e-mail can unlock information on how important the communication is deemed to be. In litigation, a web bugged document could provide valuable insight on which pages of a settlement agreement got 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 concluded.

Using technology to accomplish such purposes, said the committee, violated Rule 8.4 even when its use is disclosed and not surreptitious.

The Alaska committee agreed with the opinion of New York State Bar Association, which issued the only other analysis of the issue, in 2001.

An obvious foul

It should be self-evident to any lawyer who has taken a law-school ethics course or an ethics CLE that bugging e-mail sent to opposing counsel is dishonest. As technology offers more ways to obtain an improper advantage over an opponent, ethics regulators will play Whack-a-Mole in finding those methods to be unethical. But it’s discouraging that such efforts are even needed.