Preserving Electronic Meeting Confidentiality

Preserving electronic meeting confidentiality; NEWS; Safeguarding information; Communication system must afford a reasonable expectation of privacy. National Law Journal January 16, 2006

Copyright 2006 ALM Properties, Inc.
All Rights Reserved
National Law Journal

January 16, 2006

SECTION: NEWS; Pg. P14 Vol. 27 No. 69

HEADLINE: Preserving electronic meeting confidentiality;

BYLINE:  Jonathan Bick is of counsel to WolfBlock Brach Eichler of Roseland, N.J., and is an adjunct professor of Internet law at Pace University School of Law and Rutgers School of Law. He is also the author of101 Things You Need to Know About Internet Law(Random House 2000).

Electronic meetings are regularly used by many commerce and consulting service providers, as well as law firms. An e-meeting, like a traditional meeting, is a prearranged gathering for the purpose of discussing business or other affairs. Telephone technology has long eliminated the need for a physical presence at meetings, but the underlying technology of the Internet? which copies and then transfers content from private server to private server? results in novel legal difficulties for e-meeting participants.

Information exchanged during e-meetings is subject to the same constitutional protections and requires the same privilege precautions as traditional meetings. The nature of the Internet requires that the content of e-meetings be recorded; as the digitized recording is passed from one third-party computer to the next, each computer must make a copy of the data. Consequently, those who seek to preserve e-meeting confidentiality must take actions unnecessary for traditional meetings.

Internet meetings may take a number of forms. To some extent, they share this feature with traditional meetings. With e-meetings, the preservation of legal rights, and the necessity for technological and legal intervention, depends on the facts and circumstances associated with the over-air or over-wire meeting.

Initially, online meetings were hosted on Internet sites where users could post and retrieve information. For example, a site might have been a connection mechanism for lawyers and other advocates involved in efforts to provide civil legal assistance to low-income people. Such e-meetings typically included discussion and documentation of future legal services, an online national hotline directory and Web links to other resources that might be used by the people running, or participating in, these nascent "e-meetings."

Shortly thereafter, chat rooms became online meeting places where people could communicate in "real time" and not merely download or upload "messages" or "communication" from a site. At such sites, messages and responses were viewable almost instantaneously.

Subsequently, other types of Internet technologies allowed e-meetings to take on more of the characteristics of traditional in-person meetings. Internet Talk and Internet Relay Chat allow a sustained dialogue similar to a real-time conversation.

Other similar Internet technologies allow real-time joint editing of documents. Just as in concrete settings, counsel must take precautions against confidential information "leaking" out to unauthorized or untrained sources. Lawyers aren't the only ones held to ethical and legal standards concerning the sharing, disclosure or promulgation of information. All e-meeting participants must be mindful that what they say or write could be deemed libelous or defamatory, just as it would in a boardroom setting.

Webcasting is another popular type of e-meeting. As demonstrated by companies that have Webcast annual shareholder meetings, e-meetings may be used to fulfill statutory meeting requirements. For instance, in 1996, Bell & Howell Co. broadcast its annual shareholder meeting over the Internet. Of the 230 individuals listening to the meeting online, 15 submitted questions via e-mail.

The most recent type of e-meeting to come into vogue is the Internet telephone meeting. It has all the characteristics of a traditional telephone meeting, except that due to the intrinsic nature of the Internet, the content is lawfully available to the many intermediary Internet services that provide the link between the participants. This use of third parties raises special concerns which will be addressed below.

Safeguarding information

Consider some similarities and differences of in-person meetings and e-meetings. For one thing, in any context involving counsel, a lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure. When participating in an e-meeting, the lawyer is not, however, required to use special security measures as long as the method of communication affords a reasonable expectation of privacy.

It is important to realize that the concept of "reasonable expectation of privacy" in the context of Internet activities is continually shifting. The issue will be continually re-evaluated by juries interpreting existing laws and legislatures seeking to pass new laws. In short, since this matter is unsettled and likely to change, clients should take steps to go beyond the current general expectation of privacy.

The history of judicial limitations of wiretapping during the period preceding the Wiretap Act may provide some understanding of the future evolution of cases involving e-meeting privacy expectations. SeeU.S. v. White, 401 U.S. 745, 756 (1971) (Douglas, J., dissenting);Katz v. U.S., 389 U.S. 347, 364 (1967) (Black, J. dissenting).

Attorneys often use nonattorneys to facilitate meetings. Ethics rules make attorneys responsible for ensuring that such third-party nonattorney personnel comply with the ethics obligations that bind attorneys?whether the meeting is in-person or Internet-based. That means that an attorney must take appropriate steps to ensure that all personnel, including technology staff, safeguard confidential client information. As noted above, simply attempting to guess at what a jury will judge to be "reasonable expectations" is not appropriate when such expectations are in flux; due diligence is required.

To preserve confidentiality and associated legal privilege, practitioners and clients engaging in e-meetings, and e-meeting practitioners, must use password and encryption technology or such legal apparatus as confidentiality agreements.

Steps also must be taken to ensure that third parties, whose services are used for e-meetings, preserve privilege and confidentiality. For example, a third party may administer a company's Internet or intranet service, or may possess backups of the content of the e-meeting exchanges. To preserve certain legal privileges, third-party presence must be addressed via application of peer-to-peer encryption technology or a confidentiality agreement.

To achieve this result, the Internet communication industry might follow the example of the health industry as it implements the Health Insurance Portability and Accountability Act. In particular, HIPAA has implemented standards with respect to reasonable expectations associated with information sharing, such as securing informed consent.