Business Confidentiality: Gmail Ads Concern My Client

Confidentiality concerns are ever-present in my job. The protection of client information is fundamental in my duties as a lawyer. My work in M&A, mergers & acquisitions—the buying and selling of businesses—only intensifies the emphasis on secrecy.

Even a hint of a possible sale surfacing before a deal is ready to close can be bad news for most businesses. Public companies have securities law issues to worry about, but confidentiality matters to human-owned businesses, too. Employees, customers and suppliers are all potentially interested in the sale of a business. How and when they learn of a sale can be critical. Disclosure can be done well, and minimize anxiety and potential disruptions to the business, or the news can leak out in any number of ways resulting in rampant rumors and damage control problems. (Read to the end of the post for my two favorite stories of unintended deal announcements.)

But sometimes a disclosure isn’t really a disclosure.

My client called me, surprised and upset by ads on his Gmail messages. This client is considering selling part of his business to another company. The terms of that sale have been discussed via email. This client uses Gmail from Google to make email sent to his office account available to him anywhere in the world. Now the emails he receives via Gmail contain ads for the potential buyer.

His confidentiality was blown, my client surmised. Not so, I tried to assure him. Yes, a Google computer scanned his email, recognized the name of the potential buyer as a Google advertiser, and decided he was a good target for an ad for their customer/his potential buyer. The Google computer also scanned his messages to determine if they were spam or contained viruses, just as my law firm and your business’s mail service does. No human being outside of a small group bound by professional ethics or non-disclosure agreements knew his company was considering this advertiser as a potential buyer--at least that is Google’s promise.

Confidential emails are handled and processed by a number of machines and programs without us most of us giving it a second thought. Disclosure risks can be limited with a combination of good procedures and encryption technology, but in my experience few businesses not involved in critically sensitive matters do so consistently. For most of my clients, misfiled or thoughtlessly forwarded emails pose a much greater risk of blown secrets than cyber-snoops.

In the end, this client decided to change nothing about his communication methods. To give him a taste of real confidentiality problems, I shared with him, and now you, my favorite stories about confidentiality breaches--favorite now that they are years behind us and no lasting damage occurred.

In one case, my client had shared his plan to sell his company with his father. Understandable enough, but he failed to adequately impress upon his father the need for secrecy. The father, as fathers and mothers are prone to do, bragged about his very successful son over drinks with an acquaintance that unbeknownst to the father had connections to a competitor to the son’s company. When the competitor started telling my client’s customers about the sale, the carefully-laid plans for announcing the deal went out the window and the company went into crisis management mode.

In my other story, a telephone service company hired by a potential buyer to assess the costs of upgrading service to my client’s multiple locations created havoc. Their technician, upon visiting one location, explained to the manager that the business was being sold and that the new owner wanted to make some changes. You can imagine how quickly the manager grapevine spread that tidbit.