Everything You Do Online is Being Tracked -- "Don't Get Over It:" Klinefelter's When to Research is to Reveal

When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking, 16 Virginia Journal of Law & Technology No. 1 (Spring, 2011) by Anne Klinefelter, Associate Professor of Law and Director of the Law Library at the University of North Carolina, is quite frankly the best article I have read that addresses the dangers of online tracking to maintaining the confidential nature of legal representation. But don't take my word, read the article and decide for yourself.

We all know that the attorney-client privilege protects legal research. The use of electronic research tools should be within the scope of the privilege when the information sought is necessary for legal advice. That privilege should include but certainly not be limited to search terms used and documents viewed online by attorneys. 

In When to Research is to Reveal, Klinefelter presents a systematic analyis of the risks commercial surveillance of online activity present to attorney-client privilege, work-product protection, and the attorney’s ethical requirement to protect the confidentiality of client information. She evaluates the confidential nature of legal representation in the context of current online tracking technologies in detail. "Tracking of internet-based research," writes Klinefelter, "could require courts to develop more nuanced descriptions or definitions of confidentiality."

Securing confidentiality for online research in the context of the attorney-client relationship is not, however, going to be an easy task. "To maintain confidentiality of online legal research, one must take a broader approach to limiting online tracking than simply checking for privacy protections from individual legal research services or websites," writes Klinefelter. Recommended steps include viewing (1) contract terms with subscription services; (2) privacy policy terms of "free" services; (3) Internet service providers contracts and policies; (4) practices to prevent tracking not controllable through contracts or privacy policies; and (5) taking extreme measures such as use of software to anonymize use of the Internet.

From the conclusion:

The commercial tracking of online legal research is a growing threat to the three confidentiality interests relating to legal representation. Attorney-client privilege, attorney work-product protection, and an attorney’s ethical rule of confidentiality are bedrock principles for the United States justice system and for the practice of law. The rapid expansion in data tracking technologies, decreasing cost of data storage, and advancements in data merging techniques and practices have transformed the internet into a dangerous place at the same time that legal research is shifting to website-based systems. Attorneys must take reasonable precautions to prevent exposure of confidential information to third parties not necessary for the rendering of legal advice. Currently, an array of precautions must be implemented to protect these three confidentiality interests. To assist in identifying and updating best practices, attorneys should identify experts who can provide ongoing advice and even evaluate online services’ confidentiality support through a web assurance seal or evaluative chart designed specifically for attorneys. If even these collaborative steps are unsuccessful in securing reasonable and effective precautions for confidential online legal research, legislation or regulation must provide the needed protection. Attorneys are not the only online researchers who seek control over tracking. Laws that support transparency and require some consumer control could address other confidentiality interests threatened by trends in data collection and re-use. Confidentiality of legal representation is not just a benefit to the attorney and client in a particular relationship, but a societal value that has withstood the test of time and should remain protected.

(Citations omitted)

Scholarship in Action. Klinefelter's When to Research is to Reveal illustrates that law librarians can execute scholarship in action by providing professional expert analysis to the more general legal community. In an email to me, Anne wrote:

The article proposes that experts (perhaps from the ABA, AALL, privacy advocacy organizations) provide technological guidance for attorneys likely to be at a loss for how to reduce tracking.  However, the article also points out that tracking is very difficult to reduce because it is always evolving and is not well regulated.  The bottom line is that in the debate about privacy v. innovation, attorney-client confidentiality is a long-established set of privacy interests that are likely to be harmed by the trend towards tracking and sale of data about online activity.  In contrast with the cover story of Time Magazine, March 21, “Your Data For Sale:  Everything About You is Being Tracked---Get Over It”, I’m suggesting that some harms from tracking are not just felt by the fussy or the hyper-paranoid.  If “free” legal (and law-related) research is funded by trading away attorney-client confidentiality, that may not be a good bargain. 

In addition to the scholarly merits of When to Research is to Reveal, Klinefelter's article is an excellent example of how our profession can reach out to the non-law librarian community. 

Endnote. As a personal observation, one I hope doesn't sound condescending, I've know Anne for about 15 years. I believe I have read most, if not all, of her scholarly publications. When to Research is to Reveal is, in my opinion, Anne's best work to date and indicative of a law librarian-scholar who is in her prime. Looking forward to your future publications, Anne. [JH]