email encryptionDiscussions about the necessity for lawyers to encrypt their email invariably begin with the ABA Standing Committee on Ethics and Professional Responsibility’s 1998 Formal Opinion 99-413 which states, “A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998).”

However, more recent opinions, such as the State Bar of California’s Committee on Professional Responsibility and Conduct, in Formal Opinion 2010-179, states, “encrypting email may be a reasonable step for an attorney to take in an effort to ensure the confidentiality of such communications remain so when the circumstance calls for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous.”

Encryption refers to the process of encoding a message so that only authorized parties can read it.

In relation to electronic information like e-mail, encryption uses a set of keys or passwords to make the content of the message unreadable to anyone who does not have the proper key.

Are Messages sent in Gmail Encrypted?

By default, Gmail messages are not encrypted. Some people confuse sending e-mail via a secure web connection (denoted by “https” at the beginning of the Web address) with sending an encrypted message. While the data transferred between your computer and the Web server in an https connection is encrypted, once the information is received by the server it is no longer encrypted. Using your own encryption software keeps the content of the message encrypted until the authorized recipient uses the appropriate key to unlock the content.

Up until recently, the Google Message Encryption service was available to Google Apps customers for “on demand message encryption…to securely communicate with business partners and customers according to security policy or on an ‘as needed’ basis.” The service was based on the Postini service that Google acquired in 2007.

Google has phased out the Google Message Encryption and has not yet delivered the replacement features it promised to build into Google Apps. While Google no longer offers its own encryption service there are a number of different third-party options for encrypting Gmail messages.

Third Party Encryption options for Gmail

For larger firms, third-party vendors like CipherCloud and ZixCorp offer stand-alone applications and mail server gateway services that integrate with Google Apps to encrypt (and in some cases automatically decrypt) messages. Prices vary by size of the firm.

For smaller firms and solo attorneys, offerings like SecureGmail and Mailvelope, two free plug-ins for the Chrome Web browser that integrate tightly with Gmail to create and send encrypted messages, may be a more cost effective solution.

Tomorrow’s part 2, Lawyers, Encrypted Email, and Gmail – Part 2 of 2: The Tools, will cover step-by-step instructions for setting up SecureGmail and Mailvelope, and the pros and cons of each.

ABOUT THE AUTHORS:
Carole Levitt, Esq. President and founder of Internet for Lawyers (a CLE seminar company), has over thirty years of combined experience in the legal field as a California attorney, Internet trainer, Law Librarian and Legal Research and Writing Professor. Ms. Levitt has served on the ABA’s Law Practice Management Section’s Publishing Board since 2004 and served on the Section’s Executive Council from 2007—2011.

Mark Rosch Vice-President, Internet for Lawyers, is the developer and manager of Internet for Lawyers’ (IFL) website, Facebook Company page, and online education services. He also is the editor of IFL’s newsletter, The Internet Legal Research Update. Mr. Rosch serves on the ABA’s Law Practice Management Section’s TECHSHOW Planning Board.

Together, these internationally recognized authors and Continuing Legal Education speakers have given hundreds of CLE seminars and have written six books published by The American Bar Association, including “Google Gmail and Calendar in One Hour for Lawyers” (2013).

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