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16 Va. J.L. & Tech. 1 (2011)

handle is hein.journals/vjolt16 and id is 1 raw text is: VIRGINIAJOURNAL OF LAW & TECHNOLOGY SPRING 2011 UNIVERSITY OF VIRGINIA VOL. 16, No. 1 WHEN TO RESEARCH IS TO REVEAL: THE GROWING THREAT TO ATTORNEY AND CLIENT CONFIDENTIALITY FROM ONLINE TRACKING Anne Klinefelter t ABSTRACT Attorney-client privilege, work-product protection, and the attorney's ethical requirement to protect confidentiality of client information are at risk from commercial surveillance of online activity. Behavioral advertising, data aggregation and sale, and government access to commercially assembled profiles have been denounced as threats to privacy and confidentiality interests, but the harm to attorney and client confidentiality is of particular concern. As the legal research and broader information industries shift from print materials to services on the internet, attorneys cannot simply avoid the online environment to protect confidentiality. This article examines the risk from tracking of online legal research and draws two conclusions: 1) Lawyers must take reasonable precautions to protect confidentiality of internet-based research; and 2) Reasonable precautions are elusive due to the constant evolution of tracking technologies and practices, so attorneys should work collectively to update best practices and C 2010 Virginia Journal of Law & Technology Association, at http://www.vjolt.net. Use paragraph numbers for pinpoint citations. T Anne Klinefelter is Associate Professor of Law and Director of the Law Library at the University of North Carolina. Thanks go to participants in the 2010 Privacy Law Scholars Conference for helpful suggestions, especially Michael Zimmer and Mary Minow. Thanks also to Ann Clifford Green, John P. Tomaszewski, Elizabeth Johnson, and especially Michael Dorman for helpful conversations on the topic and to Maxine Eichner and Robert C. Mosteller for comments that helped improve the article. Research assistants Michelle Humphries and Ann McKay provided excellent support in the early development of this project, and Dave Hansen provided superlative assistance in the final stages. The author is indebted to the library staff at the Kathrine R. Everett Law Library for their support. VIRGINIA JOURNAL OF LAW & TECHNOLOGY Vol. 16 No. 01

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