Coming on the heels of our Gmail Waives Privilege dialogue, I came across even further evidence of the dangers of using free email systems like Gmail. As reported in the Washington Post and published by the Houston Chronicle, for only $100 you can buy the password to a any freemail account. The article explains how a ‘woman scorned’ contacted and was able to purchase the password to her “married boyfriend’s” AOL email account. She followed that up by securing the passwords to people he emailed who used similar accounts.

We at 3 Geeks are aware that a number of state bars have opined that email has a reasonable expectation of privacy and as such is ethical to use when transmitting confidential client information. In part, the reasonable expectation comes about since it is illegal to intercept email. However, the article points out:

Federal law prohibits hacking into e-mail, but without further illegal activity, it’s only a misdemeanor, noted Orin Kerr, a law professor at George Washington University and a former trial attorney in the Justice Department’s computer crime section.

Wow … a misdemeanor.

The feds usually don’t have the resources to investigate and prosecute misdemeanors, Kerr said. And part of the reason is that normally it’s hard to know when an account has been compromised, because e-mail snooping doesn’t leave a trace.

Ethics issues aside (which still need to catch up with reality) lawyers should have their eyes VERY wide open when using these email services. In addition to email being inherently insecure, hacking freemail accounts is now as easy as buying a book on Amazon. As we’ve noted previously, the higher duty of care lawyers hold demands a higher level of practice.