Client Confidentiality and Online Searching
by Kerry Fitz-Gerald
Recently, a former student forwarded me an article about advanced Google search techniques. In his email he noted that he didn’t use Google for research because of privacy concerns, but thought I might find the article of interest.
I was, I confess, more interested in his comment about privacy. I regularly teach my students that it can be very cost-effective to start their research in Google Scholar’s case law search, but I’d never thought about the privacy angle before. Was this just paranoia or was there something to this?
Coincidentally, just two days later, my SSRN notifications pointed me towards an article on this very issue: When to Research is to Reveal: the Growing Threat to Attorney and Client Confidentiality from Online Tracking, by Anne Klinefelter, 16 Virginia Journal of Law & Technology No. 1 (2011). After reading this article, I realized that my student may be right to be concerned, though the threat seems so amorphous it’s hard to get my head around.
Klinefelter’s article starts with an overview of online tracking and covers all aspects of online searching, including searching using subscription databases. The article is worth reading for this section alone, as she carefully explains tracking motivated for benign reasons (for cost recovery purposes) and more sinister intent (targeted advertising or data reselling). The next major section of the article discusses confidentiality interests in research, and investigates how online tracking may impact attorney-client privilege, work product protection, and ethical obligations of confidentiality and competency.
The article concludes with a brief section offering suggestions for reasonable precautions to prevent unintended breaches of confidentiality through online searching. However, since rapidly evolving technology makes identifying (and practicing) confidential online research a moving target, Klinefelter calls for experts to devote more time to investigating and offering practical guidance for secure online research, as well as for possible legislative and regulatory changes to better ensure confidentiality.
After reading the article I can’t say that I’m convinced that online searching–especially free online searching–represents potential serious breaches of confidentiality. That said, I do now think this is an issue worth tracking and will be quite interested to see how it’s dealt with by others.
Themocracy
Nice commentary, Kerry. I often wonder what trails I might be leaving when I search the web. I am particularly concerned when I use something like LinkedIn to find information on professionals – as they can see when they have been searched.
Thanks for pointing to this article, Kerry. One very real way that research can be made public is through the use of your Westlaw/Lexis representative’s training password. This password is portable, and when a representative signs on to the database in your library, it is possible to view the email addresses of who used the password last (in the print/email utility), and what they called their session. I presume that the research trail is active and could be accessed as well.