Crashing the Third Party: Experts Weigh How Far the Government/Opposing Parties Can Go in Reading Your Email & Documents in the Cloud

This article Crashing the Third Party: Experts Weigh How Far the Government Can Go in Reading Your Email – Magazine – ABA Journal discusses whether one loses confidentially when sending documents via email, and by extension, when one stores documents in the cloud. This can be compared/contrasted with previous rulings on the expectation of privacy in bank records and phone numbers dialed. This is a area of increasing concern for both lawyers and their clients. Because the rights are no longer clearly defined and are being impacted by changes in technology, it is only by the retroactive application of rulings to the situations that the current expectations of privacy become clear. I think this is a topic that deserves more attention and I intend to share thoughts on it going forward.

It is also important to note that this issue is not limited to the Government, but raises the question in the civil litigation of whether the attorney/client privilege is breached by sharing confidential documents in the cloud or via email. Is email entitled to the same protections as paper mail sent through the post office? Should only the “envelope” data be considered exposed, or if the ISP or email provider scans the actual attachments for spam or viruses, has that caused a breach of confidentiality and hence a loss of the privilege?

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