A “web bug” is a technology tool that tracks certain information about the document to which it is attached. They can be used in e-mail newsletters to help track readers, for example, but can also be used in e-mails to “invisibly” track, among other things: when the email was opened; how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities); how many times the email was opened; whether the recipient opened attachments to the email; how long the attachment (or a page of the attachment) was reviewed; whether and when the subject email or attachment was forwarded; and the rough geographical location of the recipient.
The Alaska Bar Association was asked whether it is ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of e-mails and documents sent to opposing counsel?
The answer is: “No. The use of a tracking device that provides information about the use of documents – aside from their receipt and having been ‘read’ by opposing counsel – is a violation of Rule 8.4 and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.” Explaining further:
“While the surreptitious use of tracking devices is especially troubling, even the disclosed use of a tracking device when communicating with opposing counsel is not permissible. Insofar as the tracking device allows the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, it constitutes an unwarranted intrusion into the attorney-client relationship….
“The Committee notes that Rule 1.6(c) requires a lawyer to take ‘reasonable precautions’ transmitting a communication that includes a client confidence or secret so as to avoid allowing the information to come into the possession of unintended recipients, including information in electronic form. The Committee does not interpret this duty as requiring the lawyer to presume that opposing lawyer will seek to ‘bug’ communications and requiring the lawyer to take active steps to detect and prevent such tracking devices. As a practical matter, with rapidly changing technology and software that may be impractical or even impossible for the receiving lawyer to accomplish. The Committee believes that the only reasonable means of protecting attorney-client communications and work product in this situation is to bar the lawyer sending the communication from using these types of tracking devices.”
Alaska Bar Association, Ethics Opinion No. 2016-1 (Oct. 26, 2016).