I thought that Slaw readers might be interested in this observation by BLG partner, Norman Letalik, as a result of his recent exchange with Apple Canada’s regional counsel. (The following quotation is from an email thread in a group to which I belong and is reproduced with Norm Letalik’s permission.)
Note that I have now had a telephone conversation with Ms. Famulak, who is regional counsel for Apple Canada. She confirms that the information that is dictated on the Apple iPhone 4s using the Siri dictation feature is sent to servers that reside in the US and that Apple, its related companies and agents have access to the contents of what is dictated. She did not wish to opine on whether Apple’s ability to access dictated client communications would breach legal privilege in Ontario or elsewhere. So, the best practice would be not to use the dictation feature on an iPhone 4s for any dictated information to which you intend legal privilege to attach. Note as well that Apple’s dictation servers are located in the US, so the dictated information may also be scanned for national security purposes by the US Government pursuant to powers given to it under the Patriot Act.
In his request to Ms Famulak, Mr. Letalik noted that lawyers “likely did not read your 364 pp user agreement document carefully enough to understand the implications of the above terms and conditions.”
The problem with privilege in this context is explained by Professor Adam Dodek, a new contributor on Slaw, in his February 2011 discussion paper for the Canadian Bar Association, “Solicitor-Client Privilege in Canada: Challenges for the 21st Century“:
As the House of Lords has stated, the sine qua non of privilege is confidentiality: “Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement.” The CBA has issued “Guidelines for Practicing Ethically with New Information Technologies,” which declares that “Lawyers should exercise the same care to protect the confidentiality and privilege of electronic communications as is normally expected of them using any traditional form of communication.”br /span class=”normal”PDF, at p.48 (footnotes omitted)/span
Certain knowledge that a communication is open to others to read may ipso facto prevent the attachment of privilege.