Beneath the Surface: Metadata, Transparency and the Ethical Use of Information

Michael Katz, University of San Francisco School of Law

Abstract

While the gains from the digital revolution are tremendous in terms of increased efficiency, access to information and searchability, the change in information format has caught some off guard. No longer is data limited to what is available on a piece of paper. Yet there is a price to pay for these gains. Where once a letter’s recipient could not see anything but what the sender openly presented in the letter, today that email, word processing document and spreadsheet all contain additional information not readily visible on their face. Beneath the surface, packed into the file, exists metadata - information about information.

The vast majority of a file’s metadata is invisible to someone who simply opens the document. Because it is generally hidden by design, danger arises for lawyers who are unaware that when someone opens a file, they are not seeing all of that file’s contents. Bar Associations who have thus far issued opinions about the ethical use of metadata have reached conflicting results, making it difficult for practicing attorneys to know what they can or cannot do with metadata. This paper summarizes and analyzes the ethical opinions and rules concerning metadata that have been published thus far. The paper then argues that the ABA's rule - the most tolerant of recipient use of metadata - is logical, well reasoned and forward thinking, and should therefore be followed by the majority of jurisdictions still looking for guidance.