August 17, 2013 - Phil Hodgen

Email and Encryption

We have made changes to our email systems. This blog post explains what is happening, and why.

You can communicate with us via email. Everyone in the firm has two email addresses, and you can choose which way you want to communicate with us.


  • If you want to communicate via normal email, that’s fine. Send emails to the person’s address.
  • If you want to communicate via encrypted email, set up a free Hushmail account, then send emails to the person’s email address.

Normal Email:

We use normal, everyday email systems just like everyone. The Rules of Professional Conduct say that these systems are acceptable, and attorney-client communications can be protected while using standard email systems. In other words, this is normal, and it works.

If you send an email to us using the domain name, your message is unencrypted and is highly insecure.

That means anyone in the world can read it. Specifically that includes the Internal Revenue Service. After being shamed by the ACLU, the IRS apparently decided that they should follow basic constitutional principles and, y’know, get a warrant to read your email (PDF). Color me skeptical.

Of course, there is another omnivorous risk–the giant sucking sound. Nothing more needs to be said on that topic.

Finally, by using normal email, your information will be visible and readable by any number of people who think using your credit cards and social security number would be highly profitable.

Encrypted Email:

If you send an email to one of us using the domain name, you will be sending us an encrypted message. If you attach something to the email, it will be encrypted, too.

The encrypted email system is designed to be as foolproof as possible. That means it will be a royal pain in the neck for you (and us) to use. Deliberately.

We do not want to accidentally send an email in plaintext when it should be encrypted. We do not want you to accidentally send an email in plaintext when you thought you were sending an encrypted email.

We have set up a system that makes it nearly impossible to make a mistake and breach your security.

Our encrypted email service is hosted on Hushmail. We have set up our encrypted email service so that our email addresses only accept emails from Hushmail accounts. We can only send email to other Hushmail accounts from our @hodgensecure email addresses.

If you send us an email from a Hushmail account, it will be encrypted by default. If you send an email to our email addresses from anywhere else, it will bounce–whether or not it is encrypted.

The only way for us to send and receive emails via is to log into the Hushmail website via the browser. We cannot send and receive emails on our phones, and we cannot send or receive encrypted emails from our computers using (yes we are an all Macintosh shop).

This is deliberate. This means we won’t accidentally hit “reply all” in our email program and accidentally reply in plaintext to an encrypted email. In order to communicate with you by encrypted email we must open a new browser window, log into Hushmail, and send you an email or read yours.

In order to make sure that you don’t make that mistake, either, you will need to set up your own Hushmail account. It is free. When you want to communicate with us via encrypted email, you will have to log into the Hushmail website to do so. This will help make you aware of what you are doing, just like we have a completely separate system for encrypted email so we are aware of what we are doing.

Hushmail vs. Governments

Hushmail provides adequate security, at best. Do a quick Google search for the term “hushmail insecure” and you will see that they will trip over themselves to comply with properly-issued warrants.

To us, however, that is a feature, not a bug.

When you and we use Hushmail, the U.S. government must get a court order. This, at least, is Hushmail’s currently-stated policy. We will have to trust them on that.

Hushmail is based in Canada. This means the U.S. government would need to go to extra effort to get your emails. (Federal prosecutors have done this before and they’ll do it again.) We think it is important to force the government to play by the rules. This will give you the chance to assert the attorney-client privilege, and will give a judge the power to decide what should be turned over to the government and what should be kept confidential.

This means that if there are issues and you need to assert the attorney-client privilege for your communications with us, you will (or should) have plenty of advance warning. If things work as intended you will have the ability to assert the privilege before encrypted emails are released by Hushmail. You will not be in the position of knowing all of your sensitive data is in the hands of the government–requiring you to shovel snow uphill in the summertime in hell to assert the attorney-client privilege and bar the use of that data.

Hushmail vs. the NSA

There is a second reason why I think that Hushmail’s compliance with validly issued court orders is a feature, not a bug.

Law enforcement–particularly the NSA and their counterparts in other countries–has supplanted hackers (however you define them) as the internet’s apex predator.

The NSA is known to simply store all encrypted email communications. Moore’s Law and the normal advance of technology will make brute force decryption feasible sooner rather than later. If it is encrypted, it must be suspicious, and therefore its sender must be watched.

Hushmail seems to be pliable to the government’s will. Hushmail traffic, therefore, should be of less interest to the NSA. You should assume that Hushmail’s encryption has already been broken by the NSA.

If you are concerned that your communications with our firm are of interest to the U.S. government, do not use email at all. Meet me in person somewhere in the world.

Hushmail and Lesser Predators

You will see various discussions on the internet about Hushmail and technical questions about how secure the service really is. This seems to revolve around the methodology for the storage of your private key, and is something that I cannot personally judge.

Given the recent closures of Lavabit and Silent Circle, there are few secure email providers left. The proactive shutdown by Silent Circle is particularly alarming, given the pedigree of its founders. Read the blog post carefully.

To my mind, this leaves Hushmail as the last man standing.

Hushmail, however, appears to be a plausible defense against lesser predators on the internet. Our work deals with private legal and financial issues. Encrypted emails and encrypted attachments can be sent between us in order to protect your financial information–social security numbers, credit card and bank information, and the like–from hackers.

I’m not saying Hushmail is perfect. I’m just saying that Hushmail is leagues better than plaintext email. And I’m saying that for our immediate purposes, it appears to work to protect your confidential information against nongovernmental risks. Governmental risks? I cannot judge that but I assume that everything is absorbed and stored by the U.S. government.


If you think that encrypted email is insufficient to protect your information, then face-to-face meetings will be the solution. Let’s meet face-to-face.