Sameer Baxi
The Legal Issues of E-Mail
E-mail is big business and getting bigger! E-mail
is a valuable and essential communication tool within and between public
organizations and corporations.The
problem for corporations is not so much the growth in e-mail cost and volume,
but the fact that so much e-mail traffic sent and received at the workplace is
personal in nature. And this can (has, and does) give rise to liability for
employers on a number of fronts. For example, e-mail that is hostile or offensive
to protected groups, such as those of a particular gender, sexual orientation,
race, religion, national origin or disability, can be evidence of unlawful
discrimination, for which the company will be liable. Attempts to monitor,
intercept, retrieve and/or disseminate e-mail messages, in the name of
enforcing a corporate policy on the business uses of the system, can give rise
to invasion of privacy claims. On the other hand, technology makes it so easy
to access, transmit and even alter the most sensitive corporate documents that
companies have to worry about their own employees' sharing of confidential
information with competitors and other unauthorized persons. [1]
The problem for
business owners now is that any email message sent by any employee, whether
appropriate or misguided, whether public or private, may now be interpreted
legally as the company's official corporate policy. Water cooler conversations
are now gospel. For example, the U.S. Government's antitrust
case against Microsoft, in which former VP Jim Allchin's e-mail messages
were used as proof that the company engaged in anticompetitive behavior.
The legal issues
raised by e-mail are not new ones. What is new is determining how old laws
apply to e-mail -- and educating employees about the subject. "People say the most incredible things
on e-mail," says Jim Bruce, a partner at the law firm of Wiley Rein &
Fielding, in Washington. "The power of e-mail is in a sense its own
downfall, because it's so easy to transmit and collect."[2]
As the legal case against Microsoft showed,
e-mail is essentially different from face-to-face (FTF) and phone communication
in one very important sense: it
presents an explicit, detailed, retrievable record [3] and thus does not
provide the employee with the refuge of deniability or disagreement over what
has been said that is available in normal FTF or phone communications. E-mail
is essentially different because people communicate with it “more frankly and
informally than when writing a memo” [3] and can be used as documentary
evidence in a court of law. . Policy decision makers need to educate their
employees on the legal and organizational impacts of e-mail and monitor for
inappropriate messages. Furthermore, employees should be educated about FOIA
(Freedom of Information Act) & other laws that affect e-mail.
In short, while the use of e-mail is becoming so pervasive that people view it similar to talking on the phone or in person conversation, there exists a crucial legal difference that IT managers and corporate policy implementers need to give heed to.
[2]
Margaret Steen. “The Legal
traps of e-mail” CNN/SCI-Tech/Computing Web Page <http://www.cnn.com/TECH/computing/9907/06/emailtrap.idg/index.html>
[3] Bruce Rocheleau
. “E-MAIL: DOES IT NEED TO BE MANAGED? CAN IT BE MANAGED” Division of
Public Administration, Northern Illinois University