Apr 21 2010
There are certain conventions that we've gained as we've progressed with the Internet. Some make sense, like avoiding the use of ALL CAPS SINCE IT'S ESSENTIALLY THE EQUIVALENT TO SHOUTING. Others are a little silly. And annoying. Like that confidentiality notice so many people attach to their emails. They go a little something like this:
This e-mail and any attachments may contain confidential and privileged information. If you are not the intended recipient, please notify the sender immediately by return e-mail, delete this e-mail and destroy any copies. Any dissemination or use of this information by a person other than the intended recipient is unauthorized and may be illegal.
There are more variations to that than can be counted, but you get the idea.
Personally, I've always found those notices laughable at best, annoying and stupid at worst. Here's a bit of harsh truth: Most e-mail communications are unencrypted and sent across many servers. So if we use some logic here, those confidentiality notices so many people attach to their emails are kind of pointless. Technically speaking, anyone can take a look at that oh-so highly confidential email asking your buddy if he wants to have drinks after work. It's not like postal mail which is protected by the law. I mean let's face it, for the most part, the law hasn't quite caught up to technology.
So, aside from what I consider obviousness of what sending an email means (i.e., it's out there in cyberspace), the big question is, does it hold up in a court? Obviously I'm not a lawyer and I don't even play one on TV, so I thought I'd do a little research on the topic.
To sum it up, no one has a definitive answer (at least in my minimal research – hey, I never claimed to be a journalist either!).
A 2007 Law Review article in SNEWS (link is a PDF) determines that essentially, no, that confidentiality notice doesn't hold up in court:
The courts have looked at email and determined that because all email commu- nications are viewed by third parties all of the time, there is no privileged communi- cations in emails. What?! Well, it’s not exactly that Big Brother is looking at your email. The point of contention is that any computer between you and your recipient could be looked at by the person in charge of the computer who, in turn, could see your email. Thus, there is no privilege. It does not matter necessarily that no one didlook at the email. Just the possibility that someone could look, if they wanted to in the normal course of their day, was enough for the courts to rule email is not privileged. On top of that, the court concluded that you will never know if someone in the chain of computers that processed your email did or did not look.
Looking further I came across this 2004 article where a lawyer so much as said that the notices serve to merely "stress" the intention of privacy. I think that it's reasonable to expect some sort of privacy, but the fact remains that typos in emails happen, mistakes happen and frankly, you just don't know who is reading that email you just sent. I'm not trying to play up some ominous Big Brother scenario here because the chances of some IT guy or systems admin sitting there reading every email that comes across the server is pretty slim, but reasonable expectations do not mean the same thing to the unscrupulous recipient ready to show off your dirty email laundry.
And here's another lawyer who uses common sense:
In my practice, I do not routinely include such a notice in emails. Instead, if I am sending an email containing sensitive, confidential, or privileged information, I will manually append such a notice–usually at the top rather than the bottom of the email.
Doing so also gives me the chance to think about whether I should be sending the information via email in the first place. Perhaps a telephone call or a personal meeting it the best way to discuss the information.
And better yet, here's what another lawyer had to say on the issue (not too long ago either):
These signatures are a pet peeve of mine. While the sender may hope that a couple of words in all caps will scare people into submission, there’s very little in the way of legal action which could be taken in the event I were to do any or all of those things. Quite simply, by sharing their wisdom with me outside of some contractual limitation on my behavior as the recipient (such as a confidentiality agreement between me and the sender) they ceded a significant meassure of control over the distribution of that wisdom.
The best part of his article is how he (correctly, in my opinion) interpreted the notice in the email he received. The notice:
If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or
use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED.
If you read that a couple of times I think it's fair to conclude that if you are the intended recipient you are not prohibited to disclose, copy, distribute or use the information. Sounds like a loophole or something. Either way, it makes the sender sound like a jackass.
So where does this leave us? Again, I'm no lawyer and I can't be 100% certain, but I'm convinced that those email confidentiality notices just don't hold much water. I mean really, if it's that important or so confidential, shouldn't you skip the email and either place a phone call or set up a meeting?