Eyes everywhere: what duties of confidentiality do lawyers owe to their clients?

Lisa R. Lifshitz
It has been a difficult year so far for Canadian civil libertarians as U.S. whistle-blower Edward Snowden’s massive exposure of the National Security Agency’s metadata collection has spilled into Canada.

On Jan. 30, the CBC reported a 27-page PowerPoint presentation entitled “IP Profiling Analytics & Mission Impacts” dated May 2012 retrieved by Snowden and later obtained by CBC News showed our own Communications Security Establishment Canada used information from the free Internet services at Vancouver and Toronto airports to track the metadata from the wireless devices of thousands of airline passengers for a two-week period after they left airport terminals in 2012.

While CSEC is legally prohibited from targeting Canadians or anyone in Canada without a warrant, thousands of Canadian smartphone and laptop signals were allegedly intercepted. CSEC was supposedly able to track travellers for a week or more as they and their wireless devices showed up in other Wi-Fi “hot spots” in cities across Canada and even at U.S. airports, including hotels, coffee shops and restaurants, libraries, ground transportation hubs, and any number of places with public wireless Internet access.

CBC reported this tracking operation was the “trial run” for a powerful new software program CSEC was developing with help from the NSA.

The information allegedly collected was “metadata,” information about the digital envelope that carries specific correspondences over a network, which can include an individual’s phone numbers, date, time, duration, and location of a communication, the wireless device IDs or addresses of devices on the other end of the message or call, Internet routing information — but not the substance of the communication itself.

CSEC’s position is its activities are authorized under s. 273.64 of the National Defence Act and further “guided by a robust framework of Ministerial Directives and operational policies.” CSEC does not consider metadata to be private communication, based on the wording of current legislation.

These allegations only added fuel to a growing fire as earlier this year, CSEC’s web site noted it “incidentally” intercepts Canadian communications or information when fulfilling its mandate. CSEC further acknowledged its capabilities may, under “the Assistance Mandate, be employed by national security or law enforcement agencies in a variety of circumstances — including intercept operations against a Canadian or individuals in Canada. In those cases, CSE is acting in an assistance role, is operating under the requesting agency’s legal authority (such as a warrant) and is subject to the provisions of their mandate and policies.”

John Forster, the head of CSEC, appeared Feb. 3 before the Senate’s security and defence committee and while denying the mass surveillance of Canadians, did confirm metadata is still being collected.  In response, the federal interim privacy commissioner and Ontario’s privacy commissioner have waded in, calling for greater clarification regarding the use of metadata and for increased oversight of Canada’s intelligence services more generally.

On Jan. 28, Chantal Bernier, the interim federal privacy commissioner, tabled a Special Report to Parliament entitled “Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance” that called for greater transparency, the augmentation of existing review mechanisms, and provided an extensive suite of recommendations for improvement.

The OPC grouped 10 broader areas for improvement under three major categories:
(i)    augmenting existing review and reporting mechanisms (namely, requiring CSEC to proactively disclose annual statistics on cases where it assists other federal agencies with requests for interception; requiring CSEC to produce an annual report for the minister to table in Parliament; extending existing reporting requirements on use of surveillance; updating the overview of Canada’s Intelligence Community);
(ii)    modernizing Canada’s privacy protection regime (namely, reforming existing privacy legislation to curb over-collection and control disclosure; regulating access to open-source information and investigations exploiting publically available personal information sources); and
(iii)    strengthening the current accountability regime (namely by bolstering the powers of the federal bodies reviewing national security operations; clarifying and updating other legal authorities in intelligence operations; and increasing coordination of and investment in Parliament's oversight role).  

I recommend every Canadian review this thorough and thoughtful document and hope its recommendations are taken seriously by the government — which, so far, has unfortunately not been the case given the Harper government’s spirited support of CSEC’s interpretation of the metadata issue.

However, until significant changes are made to the way in which surveillance is conducted in Canada, it would reasonably appear individual’s metadata is being targeted in Canada, not to mention what happens when Canadians cross the border into the U.S. and other countries.

Given these recent revelations, it is worth asking how Canadian lawyers like me and others can protect the confidentiality of their clients’ information when they use cellphones, smartphones, and other technology. Should these recent intelligence revelations impact how we “do business” with our clients?

This issue has begun to be actively examined in the U.S., where there are law review articles, and at least some state ethics opinions, that suggest a lawyer has an ethical duty to warn their clients about the inherent risks of technology those clients use in communications with their counsel. For example, in Opinion 96-1, the Iowa Supreme Court Board of Professional Ethics and Conduct has concluded that before sending “sensitive material” over the Internet, the lawyer must either “encrypt it or receive written acknowledgement of the risks from the client.”

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility released its Formal Opinion 11-459 in August 2011 regarding a lawyers’ “Duty to Protect the Confidentiality of E-mail Communications with One’s Client.” This opinion noted that:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

The Opinion does not make clear what is meant by “a significant risk that a third party may gain access”, but given the recent Snowden revelations, at least some Americans are starting to consider whether there is a significant risk to almost any communications a third party, e.g. the NSA, may gain access and whether lawyers have a proactive duty to warn their clients about such risks.

Ontario’s Rules of Professional Conduct oblige lawyers, per s. 2.03 (1), to at all times “hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and [lawyers] shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”

In its article “Professional Responsibilities when Using Technology”, the Law Society of Upper Canada noted lawyers have an obligation to maintain confidentiality, i.e.: When using electronic means of communication (e.g. the Internet, cellular telephones, and facsimile machines) you must ensure communications with or about a client reflect the same care and concern for matters of privilege and confidentiality normally expected when using any other form of communication.

The Canadian Bar Association’s “Information to Supplement the Code of Professional Conduct Guidelines for Practising Ethically with New Information Technologies” written in the pre-Snowden era, seems to place at least some of the burden on lawyers to protect their clients from the “new technology.”

“Lawyers must ensure that electronic communications with or about a client are secure and not accessible to unauthorized individuals. When communicating confidential information to or about a client, lawyers should employ reasonably appropriate means to minimize the risk of disclosure or interception of the information,” it says, going to address the issue further.

Interestingly, the same document later notes “lawyers have an ethical obligation, when transmitting documents electronically, to exercise reasonable care to ensure that clients’ confidential information is not disclosed in the metadata.”

If this is the case, how can lawyers continue to knowingly use technology that is clearly not secure from interception from our own government agencies? Is the above guideline still reasonable and/or relevant given recent revelations about surveillance in Canada? Do lawyers have to become security experts and employ certain minimum levels of encryption and other security countermeasures to continue to meet their professional obligations?

Certainly more current guidance and clarification from law societies or the Canadian Bar Association in this area would be welcome/helpful.

It is easy enough for lawyers to include vaguely worded statements in their retainer letters concerning the risks of technology as many of us already do, but harder to change our behaviour. In our zeal to be responsive to our clients, perhaps it is no longer legal best practice (or even acceptable practice) to connect to public Wi-Fi services in order to respond to client e-mails or otherwise engage in telephone discussions with clients in public places in order to meet our ongoing duties of confidentiality.

Depending on the nature of our clients’ practices, this may be a discussion to be had with our clients individually — and in person.

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