The Ethics of E-mail Tracking Software and Web Bugs: More Complicated Than You Might Think

Yesterday’s feature on Attorney at Work was Does Email Tracking Violate the Rules of Professional Conduct? It was written by Mark C. Palmer, who is Professionalism Counsel for the Illinois Supreme Court Commission on Professionalism. He cites a recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, issued January 2018) along with advisory opinions from Alaska Bar Association, New York State Bar Association and Pennsylvania Bar Association to conclude that using e-mail tracking software is unethical.

(Since I am discussing legal ethics, please note these opinions expressed are my own and not those of my employer.)

Palmer cites an instructive example of tracking an email with a settlement offer as it is opened by counsel, forwarded, and then opened by the client’s general counsel and several client representatives so the sender can unethically gauge how serious the settlement offer is being taken. Illinois opinion 18-01 makes the same point: “The undisclosed use of email tracking software by a lawyer, without the informed consent of the recipient, conceals the fact that the sending lawyer is secretly monitoring the receipt and handling of the email message and its attachments by the original recipient as well as each subsequent receiving party.” The New York Opinion also noted that the use of these web bugs may violate The Electronic Communications Privacy Act, 18 U.S.C. § § 2510, et seq. (I note these are widely used in email marketing today and I haven’t heard of prosecutions.)

Web bug 2I do understand. Web bugs are creepy and invasive.

But this leads to another question. Is using U.S. Postal Service certified mail an ethics violation? I doubt you could find any lawyer who says that it is. Certified mail is used daily in law offices for service of process, to confirm delivery and when mailing valuable items. It is simple and straight-forward with none of the hidden aspects of web bugs. No law office wants to run out of certified mail supplies because almost every law office uses certified mail regularly.

But with drafting committees focused on creepy web bugs, I fear they have used language that might be interpreted as also prohibiting what I consider a legitimate practice of using “certified emails.” One can easily think of many legitimate uses for such a service, such as accepting a settlement offer with an expiration date by email. We have even heard of cases where a judge has authorized delivery of process or notices by electronic means. One would certainly want to have the digital equivalent of a USPS certified mail “green card” in that situation. And isn’t it pretty obvious that we will see greater use of electronic service of process as more laws are changed to allow this?

The Pennsylvania Bar Association’s Formal Opinion 2017 – 300 discusses email receipts. It states: “This Opinion relates to the use of web bugs and similar devices, but does not prohibit the use of “Read Receipts” or “Delivery Receipts” or similar tools used by Microsoft Outlook and other email programs. Because recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use, their use by lawyers does not violate the Rules of Professional Conduct….”

“This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using “web bugs” or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates rules 4.4 and 8.4.”

Since an e-mail recipient can decline a “Read Receipt Request,” it is ineffective to prove someone read something if they do not cooperate –and sometimes those for whom you most want to have proof of delivery are also those who would never click on a “Read Receipt” agreement. The other problem is referring to visible vs invisible tracking. Computers maintain a lot of information that is available for those who know how to find it. Is that visible or not? For example, every email in your inbox has an Internet header that contains much information if you know how to view it. Is that visible or invisible? It is important to note that the title of the Pennsylvania opinion is Ethical Obligations of Lawyers Using Software To Track Email Sent To Opposing Counsel. So in that context, I am quite comfortable with the conclusion that anything that reports back to you anything more than delivery and opening from opposing counsel’s email should be known to opposing counsel. Certified email providers can provide notices within the email that their product is in use.

Illinois State Bar Association Opinion 18-01 is not limited to opposing counsel, however— and that is problematic. This opinion states: “A lawyer may not use tracking software in emails or other electronic communications with other lawyers or clients in the course of representing a client without first obtaining the informed consent of each recipient to the use of such software.” I understand that they were focused on those nasty web bugs. But certified email is still a form of “tracking software.” In these days of lost emails, emails that are mysteriously never delivered and spam filters grabbing emails, one can make a case that competent representation today involves making certain that a client has actually received and read an important digital communication. A process that insures that is quite different from a web bug telling you that a young client forwarded your email to his mother for her interpretation.

Lawyer regulators must appreciate that not all legal representation involves corporations with general counsel. Sometimes lawyers represent individuals who made bad decisions which led to the representation and who will continue to make poor decisions during the representation. It is a lawyer’s obligation to assist them in making good decisions— if possible. So making certain a client opened an email advising them of the change in the time of next week’s hearing or the location of their deposition sounds more like good lawyering than inappropriate spying to me. A delivery receipt alone could still mean it was trapped by a spam filter and never seen by the intended recipient.

But that’s not the only practical problem. The ABA released Ethics Opinion 477 on encryption of attorney-client email on May 11, 2017. This opinion makes it clear that some attorney-client communications cannot be sent via plain unencrypted email. The opinion notes that a hard and fast rule cannot be crafted to apply to all situations, and therefore a fact-based analysis must be applied. That could be a bit time-consuming for the law firm and mistakes may be made. Plus some individual clients may not be comfortable with the mechanics of decryption processes.

I have long believed that smaller law firms will be well-served to use client portals to share documents and other communications.  See Email Attachments vs. Client Portals. It is likely Emaileasier to get a client to log into a portal these days. They may have done something similar for items ranging from HIPAA-protected medical records to their Amazon account. Most of the cloud-based practice management systems available for lawyers include built-in client portals, making their use much quicker and easier for the law firm than other methods. It is a great client service to have all of the documents related to a matter organized and available for online client access 24 hours a day.

But, of course, online portals log everything that happens from the number of times a client logged in to the number of times they opened a particular document. These logs could also provide some protection to the attorney if a client denies ever seeing a document and the log shows the client opened it on ten different occasions. Lawyers often document their files for their protection against false claims or bad memories. Most would think that is a good business practice. Labeling these logs as unethical seems wrong to me.

Illinois State Bar Association Opinion 18-01 notes that recording of phone calls without permission is illegal in Illinois and it is therefore unethical for lawyers to record client phone calls without permission. It cites that precedent  among several supporting the proportion that web bug e-mail tracking is likewise unethical. Would it extrapolate this opinion to say that examining a client portal access log was unethical?

While that may seem unlikely to some observers, Illinois lawyers using client portals may consider documenting the client’s consent to this aspect of representation. That may involve adding language to their attorney-client agreement referencing client portals and how their logs operate to obtain informed client consent or other methods. But today most people understand that logging into a password-protected website leaves a record of your visit.

Hopefully if ethics authorities examine the web bug issue in the future, they will make note of the possibility of laws authorizing digital service of process, an ethical lawyer’s need to make certain important client communications are not lost in a spam filter and that it might be a good thing, at least in some cases, if a lawyer was aware that a client was not opening the attorney’s emails.

An old saying is bad facts make bad law. Maybe bad web bugs do, too. But “bad” is a value judgment and, to be clear, if you receive any electronic newsletter or regular emails from any electronic mailing list, the odds are the sender not only knows whether you open each e-mail, but the average time of day you open their e-mails— if not more.


Go to Source
Author: Jim Calloway

My March 2018 Reading Room

Maybe it was because ABA TECHSHOW was in March or maybe it was cold weather providing people more time to write.  All I know is my OBA/MAP Reading Room for March 2018 with its monthly collection of free articles, columns and blog posts ended up with 19 reading suggestions for you. I usually edit it down to a smaller number, but couldn’t this time. You don’t have to Reading Roomread them all. I use a bit of an old school “link farm” look to let you see all of the titles at a glance, or this month maybe most, depending on the size of your monitor.

The selections include a first person account on “How I Saved Myself From Near Financial Ruin” with some valuable lessons, client communication checklists, plain language contracts, what Toyota taught a Florida Legal Aid office, a powerful pro bono success story and thoughts on photo business cards that changed my thinking about their utility in “working” a conference. If you have read some of these, you should stop by the Reading Room to see what you missed.


Go to Source
Author: Jim Calloway

Site of the Week: Risky Biz

Suzanne Rose of Tennessee (and Suzanne Rose Consulting) started her blog recently, but swore me to silence for a while. Time’s up, Suzanne. Risky Biz dervives its name from the idea that running a law firm can be risky. It…

Go to Source
Author: Jim Calloway

The New Horizons probe buzzes the most distant object ever encountered first thing tomorrow

Four billion miles from Earth, the New Horizons probe that recently sent such lovely pictures of Pluto is drawing near to the most distant object mankind has ever come close to: Ultima Thule, a mysterious rock deep in the Kuiper belt. The historic rendezvous takes place early tomorrow morning.

This is an encounter nearly 30 years in the making, if you count back to the mission’s beginnings in 1989, but it’s also been some 13 years since launch — the timing and nature of which was calculated to give the probe this opportunity after it had completed its primary mission.

New Horizons arrived at Pluto in the summer of 2015, and in its fleeting passage took thousands of photos and readings that scientists are still poring over. It taught us many things about the distant dwarf planet, but by the time it took its extraordinary parting shots of Pluto’s atmosphere, the team was already thinking about its next destination.

Given the craft’s extreme speed and the incredibly distant setting for its first mission, the options for what to investigate were limited — if you can call the billions of objects floating in the Kuiper Belt “limited.”

In fact the next destination had been chosen during a search undertaken in concert with the Hubble Space Telescope team back in 2014. Ground-based reconnaissance wasn’t exact enough, and the New Horizons had to convince Hubble’s operators basically to dedicate to their cause two weeks of the satellite’s time on short notice. After an initial rejection and “some high-stakes backroom maneuvering,” as Principal Investigator Alan Stern describes it in his book about the mission, the team made it happen, and Hubble data identified several potential targets.

Ultima Thule as first detected by New Horizons’ LORRI imager.

2014 MU69 is a rock of unknown (but probably weird) shape about 20 miles across, floating in the belt about a billion miles from Pluto. But soon it would be known by another name.

“Ultima Thule,” Stern told me in an interview onstage at Disrupt SF in September. “This is an ancient building block of planets like Pluto, formed 4 billion years ago; it’s been out there in this deep freeze, almost in absolute zero the whole time. It’s a time capsule.”

At the time, he and the team had just gotten visual confirmation of the target, though nothing more than a twinkle in the distance. He was leaving immediately after our talk to go run flyby simulations with the team.

“I’m super excited,” he told me. “That will be the most distant exploration of any world in the history of not just spaceflight, but in the history of human exploration. I don’t think anybody will top that for a long time.”

The Voyagers are the farthest human-made objects, sure, but they’ve been flying through empty space for decades. New Horizons is out here meeting strange objects in an asteroid belt. Good luck putting together another mission like that in less than a few decades.

In the time I’ve taken to write this post, New Horizons has gone from almost exactly 600,000 kilometers away from Ultima Thule to less than 538,000 (and by this you shall know my velocity) — so it’ll be there quite soon. Just about 10 hours out, making it very early morning Eastern time on New Year’s Day.

Even then, however, that’s just when New Horizons will actually encounter the object — we won’t know until the signal it sends at the speed of light arrives here on Earth 12 hours later. Pluto is far!

The first data back will confirm the telemetry and basic success of the flyby. It will also begin sending images back as soon as possible, and while it’s possible that we’ll have fabulous pictures of the object by the afternoon, it depends a great deal on how things go during the encounter. At the latest we’ll see some by the next day; media briefings are planned for January 2 and 3 for this purpose.

Once those images start flowing in, though, they may be even better in a way than those we got of Pluto. If all goes well, they’ll be capturing photos at a resolution of 35 meters per pixel, more than twice as good as the 70-80 m/px we got of Pluto. Note that these will only come later, after some basic shots confirming the flyby went as planned and allowing the team to better sort through the raw data coming in.

“You should know that that these stretch-goal observations are risky,” wrote Stern in a post on the mission’s page, “requiring us to know exactly where both Ultima and New Horizons are as they pass one another at over 32,000 mph in the darkness of the Kuiper Belt… But with risk comes reward, and we would rather try than not try to get these, and that is what we will do.”

NASA public relations and other staff are still affected by the federal shutdown, but the New Horizons team will be covering the signal acquisition and first data live anyway; follow the mission on Twitter or check in to the NASA Live stream tomorrow morning at 7 AM Pacific time for the whole program. The schedule and lots of links can be found here.


Go to Source
Author: Devin Coldewey

MIT researchers are now 3D-printing glass

While the thought of a machine that can squirt out endless ropes of molten glass is a bit frightening, the folks at MIT have just about perfected the process. In a paper published in 3D Printing and Additive Manufacturing, researchers Chikara Inamura, Michael Stern, Daniel Lizardo, Peter Houk and Neri Oxman describe a system for 3D printing glass that offers far more control over the hot material and the final product.

Their system, called G3DP2, “is a new AM platform for molten glass that combines digitally integrated three-zone thermal control system with four-axis motion control system, introducing industrial-scale production capabilities with enhanced production rate and reliability while ensuring product accuracy and repeatability, all previously unattainable for glass.”

The system uses a closed, heated box that holds the melted glass and another thermally controlled box where it prints the object. A moveable plate drops the object lower and lower as it is being printed and the print head moves above it. The system is interesting because it actually produces clear glass structures that can be used for decoration or building. The researchers take special care to control the glass extrusion system to ensure that it cools down and crystallizes without injecting impurities or structural problems.

“In the future, combining the advantages of this AM technology with the multitude of unique material properties of glass such as transparency, strength, and chemical stability, we may start to see new archetypes of multifunctional building blocks,” wrote the creators.


Go to Source
Author: John Biggs

Put down your phone if you want to innovate

We are living in an interstitial period. In the early 1980s we entered an era of desktop computing that culminated in the dot-com crash — a financial bubble that we bolstered with Y2K consulting fees and hardware expenditures alongside irrational exuberance over Pets.com . That last interstitial era, an era during which computers got smaller, weirder, thinner and more powerful, ushered us, after a long period of boredom, into the mobile era in which we now exist. If you want to help innovate in the next decade, it’s time to admit that phones, like desktop PCs before them, are a dead-end.

We create and then brush up against the edges of our creation every decade. The speed at which we improve — but not innovate — is increasing, and so the difference between a 2007 iPhone and a modern Pixel 3 is incredible. But what can the Pixel do that the original iPhone or Android phones can’t? Not much.

We are limited by the use cases afforded by our current technology. In 1903, a bike was a bike and could not fly. Until the Wright Brothers and others turned forward mechanical motion into lift were we able to lift off. In 2019 a phone is a phone and cannot truly interact with us as long as it remains a separate part of our bodies. Until someone looks beyond these limitations will we be able to take flight.

While I won’t posit on the future of mobile tech, I will note that until we put our phones away and look at the world anew we will do nothing of note. We can take better photos and FaceTime each other, but until we see the limitations of these technologies we will be unable to see a world outside of them.

We’re heading into a new year (and a new CES) and we can expect more of the same. It is safe and comfortable to remain in the screen-hand-eye nexus, creating VR devices that are essentially phones slapped to our faces and big computers that now masquerade as TVs. What, however, is the next step? Where do these devices go? How do they change? How do user interfaces compress and morph? Until we actively think about this we will remain stuck.

Perhaps you are. You’d better hurry. If this period ends as swiftly and decisively as the other ones before it, the opportunity available will be limited at best. Why hasn’t VR taken off? Because it is still on the fringes, being explored by people stuck in mobile thinking. Why is machine learning and AI so slow? Because the use cases are aimed at chatbots and better customer interaction. Until we start looking beyond the black mirror (see what I did?) of our phones, innovation will fail.

Every app launched, every pictured scrolled, every tap, every hunched-over moment davening to some dumb Facebook improvement is a brick in the bulwark against an unexpected and better future. So put your phone down this year and build something. Soon it might be too late.


Go to Source
Author: John Biggs

The Very Slow Movie Player shows a film over an entire year

It seems someone took Every Frame a Painting literally: The Very Slow Movie Player is a device that turns cinema into wallpaper, advancing the image by a single second every hour. The result is an interesting household object that makes something new of even the most familiar film.

The idea occurred to designer and engineer Bryan Boyer during one of those times we all have where we are sitting at home thinking of ways to celebrate slowness.

“Can a film be consumed at the speed of reading a book?” he asked himself, slowly. “Slowing things down to an extreme measure creates room for appreciation of the object… but the prolonged duration also starts to shift the relationship between object, viewer, and context. A film watched at 1/3,600th of the original speed is not a very slow movie, it’s a hazy timepiece. A Very Slow Movie Player (VSMP) doesn’t tell you the time; it helps you see yourself against the smear of time.”

The Very Slow Movie Player is an e-paper display attached to a Raspberry Pi board; you load a movie onto the latter, and it processes and displays a single frame at a time, updating the screen with a new one every two and a half minutes.

That adds up to 24 frames per hour, as opposed to the usual 24 frames per second — 3,600 times slower than normal viewing, and producing a (perhaps) 7-or-8,000-hour tableau you view over the course of a year or so.

“It is impossible to ‘watch’ in a traditional way because it’s too slow. In a staring contest with VSMP you will always lose,” writes Boyer in a post explaining the project. “It can be noticed, glanced at, or even inspected, but not watched.”

He compares it to the work of Bill Viola, whose super-slow-motion portraits are similarly impossible to watch from start to finish (unless you’re very, very patient) and therefore exist in a sort of limbo between motion picture and still image.

The image itself leaves something to be desired, of course: e-paper is essentially 1-bit color depth — black and white. So the subtleties of color you might see in any film, color or no, will be lost to dithering.

The way it’s done helps highlight the contrasts and zones of a scene, though if you really want to appreciate Rear Window as cinema, you can watch it any time you like. But if you want to appreciate it as a process, as a relationship with time, as an object and image that exists in the context of the rest of the world and your life… for that, you have the Very Slow Movie Player.


Go to Source
Author: Devin Coldewey

This wristband detects an opiate overdose

A project by students at Carnegie Mellon could save lives. Called the HopeBand, the wristband senses low blood oxygen levels and sends a text message and sounds an alarm if danger is imminent.

“Imagine having a friend who is always watching for signs of overdose; someone who understands your usage pattern and knows when to contact [someone] for help and make sure you get help,” student Rashmi Kalkunte told IEEE. “That’s what the HopeBand is designed to do.”

The team won third place in the Robert Wood Johnson Foundation’s Opioid Challenge at the Health 2.0 conference in September and they are planning to send the band to a needle exchange program in Pittsburgh. They hope to sell it for less than $20.

Given the more than 72,000 overdose deaths in America this year, a device like this could definitely keep folks a little safer.


Go to Source
Author: John Biggs