We’ve written before about “web bugs” — tracking devices consisting of an object embedded in a web page or e-mail, that unobtrusively (usually invisibly) reveal whether and how a user has accessed the content. Three jurisdictions (Alaska, New York and, most recently, Illinois) have issued opinions pointing to the ethics issues that can arise when lawyers use such tracking devices surreptitiously to get a leg up on an opposing party.
The Illinois opinion, for instance, says that at a minimum, undisclosed use of web bugs in the course of representing a client violates the state’s version of Model Rule 8.4(c) (barring dishonesty, fraud, deceit and misrepresentation) and can be an improper invasion of the lawyer-client relationship, violating Rule 4.4(a) (barring obtaining evidence in violation of the rights of another).
The latest web-bug development comes not in a staid ethics opinion, but in military proceedings in which a Navy lieutenant is charged with conduct unbecoming an officer, with connections to a high-profile war crimes court-martial involving a Navy SEAL and an Islamic State prisoner. The circumstances sound straight out of a thriller.
But first, how does “web-bugging” work? It involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail. The image might be invisible or it might be disguised as a part of the document. It works by transmitting specified information to the sending party when the recipient opens the “bugged” document.
The information available from a web bug is wide-ranging, and can include:
- the approximate geographical location of the recipient
- when and how many times the e-mail was opened
- how long it was reviewed (including whether it was in the foreground or background)
- whether the recipient opened attachments
- how long the attachment or a particular page of the attachment was reviewed
- whether and when the e-mail and/or attachment was forwarded
Bitten by a bug?
As reported in the ABA Journal, earlier this month defense lawyers for Lt. Jacob Portier filed a motion accusing a military prosecutor of sending “bugged” e-mails to thirteen lawyers and paralegals, plus a reporter with the Navy Times. According to reporting by the Navy Times, Portier is accused of holding a reenlistment ceremony for a Navy SEAL next to the corpse of an Islamic State prisoner allegedly stabbed to death by the SEAL.
The SEAL has pleaded not guilty to a charge of murder in the stabbing death, which occurred in Iraq in 2017, and the military case has drawn much attention, including from President Donald Trump, said the Navy Times.
The e-mail with the tracking device is reported to have been sent by a Navy prosecutor to defense lawyers for both Portier and the SEAL, plus the Navy Times reporter responsible for reportage based on leaked documents.
According to the ABA Journal, the military acknowledged that it “used an audit capability” to investigate the leaks; the motion filed by Portier’s defense lawyers described the tracking software as being in a logo showing an American flag and a bald eagle perched on the scales of justice. The motion seeks additional information about the web tracker, and cites the possibility that it could intrude on the attorney-client relationship, along with Portier’s constitutional rights under the Fourth and Sixth Amendments.
Outside of the client-representation context, e-mail tracking devices can be used for benign ends. For instance, e-mailed newsletters sometimes use a kind of web bug to provide metrics on how many readers open the newsletter, and what pages they look at. But using web bugs to get information on opposing counsel or opposing parties, or for forensic purposes, can raise red-flag legal ethics issues that you need to consider.