Feature Articles
Detours on the Information Superhighway: The Erosion of Evidentiary Privileges in Cyberspace and Beyond
In this paper, the Authors describe how the technological advancements in telecommunications over the last century have eroded many protections of attorney communication afforded by various common law evidentiary privileges. They note that although federal law now makes the unauthorized interception of any oral, wire, or electronic communication a criminal offense, most courts and state ethics rules fail to protect the privileged nature of attorney communication when attorneys use new forms of communications technology such as cellular telephones or e-mail.
The Authors first present an historical overview of the interaction between advances in telecommunications technology and public concerns for privacy. They focus particularly on the advent of the telegraph, the telephone, wireless communications, computer networks, and the legal response to these developments. The Authors then discuss the attorney's evidentiary privileges, and the impact of technology on the protection of privileged communications. Lastly, the Authors discuss the conflict between state ethics rules and the emerging law regarding evidentiary privileges. The Authors conclude by suggesting that attorney-client communication is better protected by expanding federal legislation and enacting state legislation to explicitly include attorney-client communication in the definition of confidential communication now protected by federal law.