A number of scandals in recent years have revealed the power of the electronic record. From Enron to the Foley page scandal, email and instant messaging technologies have provided evidence of wrongdoing long after their users had assumed that the information had disappeared into the ether. Information stored by web browsers and on Internet servers can also hold secrets about web-browsing habits that most users would prefer not to reveal. With this in mind, a number of developers have created programs and services that protect privacy by reducing or eliminating the electronic trail that online communications typically leave behind.
These new developments hold the potential to assist attorneys seeking to protect their clients' information, and could potentially prevent embarrassing email trails or web histories from becoming public. Conversely, the new technologies will make e-discovery tasks much more difficult, as more and more of the information that attorneys have come to rely on in litigation vanishes behind a wall of privacy.
The New Privacy Technologies
The major web browsers have options to increase privacy, such as the ability to disallow cookies, erase the history of visited websites and eliminate the cache of temporary internet files that accumulates during a web session. These options have to be set by the user, however, and many users either neglect to do so, or don't have the level of comfort with the browser to carry it out.
Enter Browzar. Using the ubiquitous Internet Explorer as its browsing engine, Browzar comes with its default settings configured to offer users the most privacy possible from a browser. It is definitely a no-frills program, offering simple browsing and not much else, but it does a good job of protecting the user's privacy. It doesn't collect a browsing history, doesn't store files or cookies, and eliminates the "auto-complete" feature that can reveal websites a user has visited in the past.
Browzar also requires no installation, so users can download it wherever they need to use the Internet, making it ideal for users of shared computers. It will also run off of a CD or flash drive, so users can take it with them when traveling.
While it isn't likely to win any awards for robustness, Browzar protects privacy with no modifications by the user. This simplicity, combined with its portability, makes Browzar a useful application for most Internet users. Plus, it's a free download, easily available from browsar.com.
While Browzar may eliminate the storage of information about browsing habits on the user's own computer, the servers that the user connects to will still contain some record of which sites the user went to and what she did while she was there. Torpark addresses both problems. Not only does it prevent the collection of browsing history and the like, it also utilizes a technology that makes it extremely difficult to trace users of a website back to an individual in the real world.
Torpark is based on Mozilla's Firefox browser, and uses the Tor technology to allow for anonymous browsing. Essentially, Tor utilizes a series of proxy routers that mask a user's Internet Protocol address from the website the user visits.
Every computer connected to the Internet is assigned an IP address that identifies the computer so information can be exchanged between it and sites on the Web. When someone visits a web page, that web page will record many facts about the visit, including the user's IP address. That IP address can identify the computer that was used to access the site, which could in turn identify the person using the computer.
By using proxy routers, the Tor system only passes on the router's IP address, and not the user's. The user's Internet Service Provider only sees that the user visited a Tor router, and the website at the other end is only aware that a Tor router accessed the site. The user's identity is effectively blocked.
Torpark contains a built-in implementation of the Tor system, so every website visited through the browser goes through Tor's series of proxies. It doesn't provide any additional encryption, though, so while a user's identity cannot be determined through IP address, it could be determined through any personal information transmitted across the Internet. Users should still be careful about which sites they visit for this reason.
Torpark comes as a ZIP file, and it has a fairly large footprint once it's extracted. This is because it contains a complete version of Firefox. This adds to the size of the file, but also allows you to run the program on computers that don't have Firefox installed. Despite the somewhat large size, it's still possible to run Torpark from a flash drive, which makes this program another good option for home or on the road. And, like Browzar, it's freely distributed.
Embarrassing email and IM messages have been in the news a lot lately. Between the damning emails that circulated among HP board members and executives, and the inappropriate messages that led to Representative Mark Foley's sudden resignation, emails and IM messages have shown themselves capable of felling giants. These types of messages can affect liability on a number of issues, leading many to wish for an electronic communication system as easy as email or IM, but with no record of the content of communications.
Vaporstream constitutes just such a system. Vaporstream is an online communications service that purports to destroy the email and IM communications it delivers as soon as they're read. It operates by taking messages and separating the sender and recipient information from the content of the communication. Then, once the message is read, it disappears. The message is never stored on a Vaporstream server, and the content of the message cannot be copied, cut or printed, so the communication is certain to remain private.
Vaporstream is a paid service available to individuals and enterprises. Because it's functionality is extremely limited, it won't completely eliminate the need for email or IM. For certain communications that need to remain completely private, however, Vaporstream might represent a perfect solution. More information is available at vaporstream.com.
What the New Technologies Mean for Attorneys
These new technologies are poised to alter many aspects of the ways in which attorneys communicate with clients and engage in electronic discovery. While they stand to make client communications easier, electronic discovery will most likely become much more complicated and expensive as these technologies are widely adopted.
Attorneys can advise clients to utilize these new technologies in order to diminish the possibility of liability springing from wayward communications. While attorneys must never facilitate a client's violation of laws or regulations, the adoption of a technology like Vaporstream could prevent confidential business information from leaking to competitors or the press, and could also prevent ill-advised employee messages from creating liability for the employer.
Attorneys can also use these technologies themselves when communicating with clients. While all client communications are privileged, if messages outlining trial strategies or legal arguments are inadvertently leaked or handed over to opposing counsel, the damage cannot be corrected through invocation of the privilege. A system such as Vaporstream allows for easy communications between attorney and client, but removes the possibility of any misuse of confidential communications. Browsar and Torpark can also help attorneys who might have to visit areas of the Web that they would prefer not to in preparing for a case. These browsers will protect the attorney's privacy and allow her to feel more comfortable as she researches a case.
On the flip side, these new technologies will make litigation more difficult than ever. If individuals and enterprises begin using recordless communications systems, the trail of messages that could have proved liability on an issue will disappear, and attorneys will be forced to dig even deeper in a costly attempt to uncover evidence. Moreover, tracking down lawbreakers and tortfeasors on the Internet will become increasingly difficult as new technologies help users cover their tracks online.
The rise of these new technologies underscores the importance of e-discovery experts, who are likely to come up with more advanced methods for uncovering electronic information as these privacy technologies proliferate. E-discovery experts already have a range of tools for forensically analyzing computer systems to recover data, and there are a number of programs that assist attorneys in their e-discovery efforts. Visit FindLaw's E-Discovery Page for more information.