Invisible web-bugged emails sent to opposing counsel tracking how the recipient uses them is a growing risk for lawyers. The Alaska Bar Association Ethics Opinion No. 2016-1 (10/26/16) addressed the issue by considering this question: May a Lawyer Surreptitiously Track Emails and Other Documents Sent to Opposing Counsel?
The opinion begins with a good description of what a web bug is:
A web bug is a technology tool that tracks certain information about the document to which it is attached. A common method of “web bugging” – used in e-mail newsletters to help track readers, for example – involves placing an image with a unique website address on an Internet server. The document at issue contains a link to this image. 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 opinion includes this list of what web bugs can track without the recipient’s knowledge:
The Committee concluded:
The recent Illinois State Bar Ethics Opinion 18-01 (1/18) concurs with the Alaska opinion and points out that “read receipts” are equivalent to certified mail receipts. The opinion also concluded that it is unethical to use tracking software on email sent to a lawyer’s own clients.
There is disagreement with the Alaska opinion on which lawyer has the burden to prevent bugged email. Some authorities argue that the onus should be on the receiving lawyer to risk manage email. The article Email Tracking: Is It Ethical? Is it Even Legal? by Chad Gilles* is a thorough discussion of the issue. While it is problematic to anticipate how Kentucky authorities might decide the issue, it is likely they would agree with the Alaska opinion. The best risk management approach is to follow it or call the Kentucky Ethics Hotline for guidance.
*Lawyers’ Manual on Professional Conduct, Current Reports, Vol. 33,No. 1, p.21, 1/11/17.