New Threats to Attorney-Client Privilege (Part 1)

Part 1 of a 2-part series (See Part 2 here)

Why does your client tell you their story? What reason do they have to be completely honest?

If you’re an attorney, you say it’s because the attorney needs the whole story to adequately represent the client. But if you’re on the other side of the deal, you probably only feel 100% comfortable being completely honest because of the attorney-client privilege. You believe that what you tell your attorney is secret, confidential, protected.

What happens when your client’s belief in your ability to keep a secret erodes? What happens when your belief in your own ability to keep a secret erodes? What happens when our society itself has to reexamine the nature of privacy?

Without the belief that certain actions are private – whether by their nature or due to efforts like encryption – trust is elusive. Our clients may not trust us enough to speak candidly. Worse, we might start to fear our own ability to keep information secret, and instruct our clients to keep information to themselves.

Well, thanks to some of our country’s fine wireless carriers, we have two new reasons to question that whole “privacy” thing:

1) Verizon and AT&T are using “Perma-Cookies” to track you.

Recently, it was learned that a division within Verizon, called the “Precision Insights Division,” has been tracking internet searches made from your mobile device. This information, which includes the precise time the search was made and, more importantly, your exact location, are being collected as part of your individual profile, to be sold to advertisers for more precise marketing.

Oh, and it’s all been done without your permission, or even notifying you. For two years.

That’s right, if you’re a Verizon Wireless customer, you’ve been generously adding to Verizon’s profits simply by using your device’s connection to the internet. How do they do it (and in a devious manner that you cannot avoid)?

Each and every time you perform an internet search from your wireless device, Verizon attaches a 50-digit tracking code, similar to cookies added to your computer by other sites. Except for one little thing: those cookies are unblockable.  They’re inserted by Verizon after the request leaves your mobile device.

Unless you opt out (which is hard when you were never informed it was happening, let alone how to opt out), you have no privacy protections whatsoever for your internet search history from your device (including, I have to stress, your location when you performed the search). Verizon has been keeping track of exactly what you search for, and where you are when you do it.  Then selling that information.

Oh right, and about that whole “opt out” thing: even if you opt out, Verizon will still include the tracking code on your searches.  They just won’t sell the information.  Yet.

It was also recently revealed that AT&T was testing their own version (although they claim that it was just a test, and have no plans to implement it full time). Roughly two thirds of all American mobile devices operate on either Verizon or AT&T.  Two thirds of the country’s wireless users were subjected to a privacy-killing tracking system so that Verizon and AT&T could make more money on advertising.

(Another happy thought – the NSA, who have already demonstrated zero respect for attorney-client privilege, have used advertising networks like this in the past to gather information.)

How is attorney-client privilege affected?

Have you ever looked up a matter important to your case from your mobile device? If you’re reading this blog, either you have or your not a practicing attorney (in which case, I envy you!). Our phones and tablets are with us everywhere we go, including (for the most part) court appearances, mediations, client meetings, depositions, jail and prison visits.

Now imagine what the content of that search, the exact date and time the search was performed, along with your precise location at that time, says when put together. Are you giving away the strategy of your case? The location of an important piece of evidence or witness? Now imagine this information being sought out – remember, it’s collected to make a profile of YOU – but not via warrant or subpoena. It’s actually up for sale.

Hell, this is a LOT more information on your precise movements than what Uber threatened to release regarding its passengers’ late night drop-offs and early morning pick ups! (John Hodgman’s brilliant analysis here)

As an attorney, we may be irritated (there are a few who are irate, but not nearly enough). But since any information obtained from these “perma-cookies” is probably not due to an ethical violation, we’ll let it go. How will your clients and prospective clients feel?

… if you think this is bad, check out more bad behavior in Part 2.