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Free E-Mail Services: Safe or Not?

Last week, I asked whether lawyers make a poor impression on clients when using free e-mail addresses like Gmail or Yahoo. This week, there's a more serious debate brewing in the blogosphere over e-mail, specifically, whether free e-mail services are unsafe at any speed. In other words, are the confidentiality and privacy features of these systems so grossly inadequate that no level of caution can make them suitable for communication with clients?

Toby Brown at 3 Geeks and a Law Blog cautions against reliance on these services. Re-reading the terms of service agreements from Gmail and Yahoo, Brown discovered that they both reserve the rights to pre-screen e-mail and target ads to content. Because these free e-mail services expose confidential communications to third parties, Brown believes that lawyers who use these services may be waiving confidentiality and could put themselves at risk of disciplinary action.

I've reviewed the Google ToS agreement several times before but I don't agree with all of Brown's conclusions (Disclosure: My husband works at Google but not on any e-mail-related projects). For example, Brown only partly posts language from "Content from You" -- the ToS provision that says "By submitting, posting or displaying the content you give Google a perpetual, ... free ... licence to ... any Content." However, the reason that Google needs access to a license is to provide its service, and the ToS make that point clear:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

As for scanning the content of e-mails, that may be unavoidable in an Internet Age. As Sam Glover writes at Lawyerist, most mobile messaging devices, like iPhones or BlackBerrys, route information through servers where third parties have access to your communications. And in most cases, the scanning is automated, based on computer scans of words or trends, not humans reading the e-mail. Finally, Google's privacy policy offers added protection. Still, for those lawyers who don't even want e-mails scanned for ads, they can upgrade to Google Apps, says Glover, which keeps mail free from scans and offers even stronger protections.

I realize that there are risks to using free e-mail services, but at the end of the day, I'm willing to accept the risks in exchange for the convenience. For starters, I haven't seen any cases where client confidentiality was compromised or data accessed through transmission by free e-mail, so I'm going to assume that the risk of harm is low. In addition, even though I don't use a free e-mail service for client communications, many of my clients do. If I have an ethics obligation to ensure that e-mail transmissions are secure, wouldn't I then have an obligation to tell clients to forgo free e-mail to communicate with me, even though it may be their only option?

I realize that there are secure methods for communicating online (through online portals and workrooms), but I find that for many of my clients it's a hassle to have to log into a service to communicate with me. If free, unsecure e-mail is the quickest way that clients can send me feedback or let me know something about their case, then I want to encourage that communication. As I see it, what's more harmful than the hypothetical risk of disclosing client communication is the very real problem that clients won't take the time to send me information critical to their case because I've put in place too secure a system (on both ends).

Posted by Carolyn Elefant on August 19, 2009 at 03:32 PM | Permalink | Comments (9)


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