Email evidence was a highly publicized part of the Microsoft antitrust case, with both sides resurrecting chatty notes that are several years old. The case has shed light on some sobering facts about email. Not only is it more than idle chatter, it's also very hard to get rid of. In this article, Jack Fries demonstrates how ill-conceived, dogmatic email can come back to bite you and your agency. Do you know what your CSRs, producers and others are saying to others? For a chilling look at a major E&O exposure, keep reading....

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Email evidence was a highly publicized part of the Microsoft antitrust case, with both sides resurrecting chatty notes that were several years old. The case has shed light on some sobering facts about email. Not only is it more than idle chatter, it's also very hard to get rid of.

 

People need to recognize that in corporate environments email is kept on backups perhaps in perpetuity. And if you send an email at work that you regret? There may not be anything you can do about it. You'd have to go to the corporation and ask them to delete their backups. And that may be impossible.

 

What you can do is use encryption to scramble your email so no court or law enforcement agency can read it. Courts have so far agreed that compelling encryption users to surrender encryption keys to law enforcement would violate the Fifth Amendment. And if you make a regular habit of getting rid of your encryption key -- the digital equivalent of shredding -- the messages will unrecoverable for both civil and criminal proceedings. Of course, then you can't read them either.

Privacy concerns have helped spark free Web-based email services like Hotmail or Yahoo!Mail. Many computer-savvy workers use free services to send personal email at work because employers can't really track it. But a Hotmail spokesperson said the company fully cooperates with both criminal and civil proceedings, so using it doesn't guarantee your email won't end up in court.

 

Email sent from home is a little more secure for a practical reason: Internet service providers don't spend the money to keep backups of the millions of messages sent every day. America Online keeps messages for about 50 days. Hotmail said it stores mail for about the same time period. Smaller service providers store email for two weeks or less.

 

"There was sort of a gentlemen's rule that attorneys wouldn't look into it, because nobody understood how it worked," said David Sorkin, associate director of the Chicago-based Center for Information Technology and Privacy Law. "That's disappearing in this age of litigation. It's almost routine to investigate whether there are electronic documents."

Even though email is sent casually, it is no different than a memo written on company letterhead.

 

"The law currently treats [email] like any other document," said Microsoft's Mike Murray, Vice President Human Resources and Administration. "It's only in people's minds that it's somehow like an unrecorded phone conversation...somehow more secret or more private."

 

Email from Microsoft Chairman Bill Gates was included in the government's antitrust lawsuit. Gates described, in a July 1996 message, how he tried to persuade the chief executive officer at Intuit, Inc. not to distribute Netscape's Internet browser with Intuit's popular personal finance software.

 

"I was quite frank with him that if he had a favor we could do for him that would cost us something like [$1million], to do that in return for switching browsers in the next few months, I would be open to doing that," Gates wrote.

 

Microsoft contends the email messages, quoted liberally throughout the government antitrust lawsuits, were taken out of context, just part of a larger email "thread" that would cast the comments in a different light.

 

"Unlike traditional hard-copy memorandums, email is often structured as fragmented comments in response to a prior message, such as 'Sure, let's do it." It is often very difficult to understand the proper context of the a 2-3 year old fragment and hence impossible to draw a solid conclusion of intent."

 

Microsoft benefited from an earlier email message uncovered during the government's investigation. When a judge appointed Harvard professor Lawrence Lessig as a "special master" to look into important technical issues over Microsoft's objections, the company uncovered an old email in which Lessig told Netscape he had "sold my soul" by installing Microsoft's browser.

 

"There is nothing more powerful in litigation than having a handwritten note that somebody stuck in a file or an email," said Tyler Baker, an antitrust lawyer in Dallas. "People are much more conversational and less guarded and more colorful. It comes across much more directly."

 

If you've ever tried to find an important email you've lost, you have a feel for the "needle-in-a-haystack" task facing corporations trying to fulfill subpoenas for email. Just because a note exists somewhere doesn't mean it will become Exhibit

 

A. Backup tapes can fail, and searching them can be a daunting task. A Company can object that finding some email is an "overly burdensome" discovery request, and courts have been sympathetic to that objection.

 

Also, it can be difficult to verify authorship of an email, which carries no telltale pen-and-ink signature. Even if the email account is protected by a password, that does not guarantee it wasn't sent by someone else with access.

 

Sometimes a person faking an email can have sinister motives. After Oracle Corp. in 1992 fired employee Adelyn Lee, the one-time girlfriend of Larry Ellison, Oracle's billionaire chairman, Ellison received a message purportedly from one of his vice presidents saying, "I have terminated Adelyn per your request." Ellison fired back: "Are you out of your mind! ... I did not want to get involved in the decision for obvious reasons."

 

Lee sued over her firing and settled with Oracle in 1993 for $100,000. But she was sentenced in 1994 to one year in prison and ordered to repay the money after prosecutors showed she had sent the incriminating email to Ellison, forging the name of the Oracle vice president from his own account.

 

Even though email will become more and more a substitute for passing conversation, courts are not likely see it that way. From what we've observed, the trend is to include in evidence more and more categories of electronic documents, not less.

Sources: Dave Baniser, Electronic Privacy Information Center
David Sorkin, Center For Information Technology And Privacy Law