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Secure E-Mail and Privileged Communications

As the pace of technological advancement continues to increase, attorneys and state bar associations are grappling with how to address changes in technology. One area still rapidly evolving is confidentiality of communications. Communications between attorneys and clients are generally privileged so long as they are not disclosed to third parties. That privilege essentially means those communications cannot be disclosed or used in court - so long as they are kept secret. State laws vary on how privileged communications are treated, but generally, if the parties take reasonable steps to maintain that secrecy, then the communications are privileged. For an extreme example, a third-party breaking into a locked law office to steal a file cannot break privilege this way because, among many other reasons, the attorneys took reasonable steps to safeguard the communications. When most communication took place directly, i.e., by First Class U.S. Mail, telephone, teletype and facsimile, it was relatively easy to guard against third parties intercepting communications using physical security. Mail tampering, telephone taps and other means of intercepting these communications were generally limited to lawbreakers and law enforcement. Modern electronic communications can now include e-mail, texts, photos, videos or other communications being sent via third parties. A typical e-mail can take a long and winding road in the few seconds it takes from hitting "send" to receiving the e-mail. It might originate on a smartphone, then pass through either a cellular telephone service provider or ISP, then travel through the sender's e-mail provider's servers, over the internet to the recipient's e-mail server, ISP and finally land in their desktop Inbox. Every computer or server along the way can, and frequently does, keep a copy of that e-mail. Most e-mail is not encrypted. Moreover, most U.S. citizens are not aware that any e-mail left on a third-party server for more than six months has essentially no privacy protections and may be obtained by the government without a warrant. Third party servers include your Gmail, Yahoo, Hotmail or similar accounts not directly controlled by the sender or recipient. States differ in the details of the ethical rules applicable to attorneys. In a 2015 Ethics Opinion, the Iowa State Bar opined that attorneys communicating electronically with their clients must inform the clients about the risks of interception. This is typically applicable when the client uses an employer-owned computer, network or hardware. Attorneys must take reasonable precautions to prevent third party interceptions. However, the opinion does not define what those "reasonable precautions" must include. No reported Iowa cases have addressed this issue yet. A savvy attorney who knew opposing counsel and her client were communicating via e-mail could file a motion requesting that all those communications be turned over on the basis that numerous third parties had access to the e-mails. Typically, the third-parties along the e-mail route operate on an automatic basis and no humans review the e-mails. However, they could do so if they chose. In addition, many free e-mail providers scan every e-mail to tailor advertising to their customers or to sell that information to advertisers. Google is upfront that it does this with all e-mail passing through its servers, even e-mails originating outside of Google. Whether this is sufficient to destroy the privilege is an open question. It is a question that should make attorneys extremely nervous. The obvious solution is to encrypt e-mails and other electronic communications "end-to-end" so that no matter who obtains a copy of the encrypted text, they will not be able to decrypt and read it. End-to-end means that the communication is encrypted along the entire route it may travel. Until recently, effectively using end-to-end encryption was a complicated process with many potential pitfalls. New providers have created communications services that allow easy encryption of communications in the last few years. Attorneys should be on the bleeding edge in adopting these technologies. Arnott Law Office offers several means of encrypted communications my clients can use to reach me. These include text services Signal and WhatsApp as well as e-mail through ProtonMail. Each of these services is free for consumer-grade accounts. I should be clear that I am not endorsing these services or guaranteeing that they are perfect solutions. Until the legal world adopts formal rules on encrypting communications I believe it is prudent to use these services for privileged, sensitive or confidential information. Clients or potential clients can reach me by smartphone using the Signal or WhatsApp apps available in the Apple AppStore or Google Play at (319) 541-2822. Encrypted e-mails may be sent from a free ProtonMail account to me at You can set up an account at

Posted February 7, 2017
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