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October 8, 2004 • Vol.26 Issue 41
Page(s) 34 in print issue

Confidentiality Statements On Emails
Pointed Messages Remind Recipients Of Basic Privacy Expectations

We live and work in an electronic world. Messages and information can span the globe in a matter of seconds, passing through many servers and other information-handling devices along the way. However, much of the information exchanged between corporations and individuals is private in nature—confidential thoughts, notes, and data not intended for just any casual user. When multiple users share the same computer or a person selects an incorrect email recipient, such confidential information can be viewed by unintended recipients. Businesses have grappled with the problem of confidentiality for years, and many firms employ confidentiality statements to help express their intention of privacy.

Reasonable Expectations

Lawrence A. Husick, intellectual property and technology law attorney at the firm Lipton, Weinberger & Husick, says that traditional paper letters (sent through the mail in a sealed envelope) have been protected as "confidential communications" for the past 150 years in the United States. "This is because, the courts have said, the communicants have a ‘reasonable expectation of privacy' that should be enforced against wrongful attempts to learn the content of the communications," he says.

Unfortunately, today's electronic communications do not enjoy that same standard of protection. "Electronic communications, on the other hand, pass through many servers in their way across the 'Net, and the wiretap laws enacted in the 1930s to extend the same ‘reasonable expectation of privacy' standard to telephone conversations (note that this was after the invention of the switch exchange that took the human operator out of the connection) expressly did not extend to other, nonvoice, electronic communications," explains Husick.

Consequently, the use of confidentiality statements lets firms and individuals stress the intention of privacy in electronic communications. Husick puts it plainly: "We developed an expressed way of saying to the world, ‘Hey, the law has not caught up with the new-fangled way of sending messages, but we have a reasonable expectation of privacy. If we screw up, help us by not posting our communication on a billboard, OK?' "

Practical Applications

There is generally no "legal" need for any confidentiality statement to be included with an email. No business entity or user is currently obligated to include such statements, so the common use of confidentiality statements today is largely a matter of Internet custom, similar to the way that typing a message in ALL CAPS is interpreted as shouting. Because there are no legal obligations to use confidentiality statements, the structure and wording of the statement is completely open and can be tailored to the needs of individual organizations.

It's important to realize that confidentiality statements offer no significant legal protection for you or your sensitive information. No matter how ominous and threatening the wording may be, it is virtually impossible to hold an unintended recipient accountable or prevent that unintended recipient from using or exposing that information further. A confidentiality statement is merely an expression of an expectation of privacy in a communication. Husick says, "As for obligating the recipient, just think, I could send you an email that said, ‘If you read this email, you owe me $1 million.' How do you think that would stand up when I tried to collect from you?"

Still, Husick is in favor of using confidentiality statements. "Everyone should use them, and there should be an honor system because I may mess up and inadvertently send you something today, but you're likely to mess up tomorrow. It's just fair and equitable."

No Absolutes

Of course, any corporate council will tell you that there are no absolute answers when it comes to matters of privacy and confidentiality. Laws and regulations vary among states and provinces and can be interpreted quite differently depending on your location. Every business effort has unique needs and specific legal exposures that a confidentiality statement may help to address. Perhaps the best advice is to consult with your own corporate council regarding the use of confidentiality statements. An attorney is best suited to offer advice on their use and help you prepare the most suitable wording for your specific circumstance.

by Stephen J. Bigelow

Sample Confidentiality Statement

This is the actual confidentiality statement used by the law firm of Lipton, Weinberger & Husick. It's good to see that attorneys have a sense of humor.

This electronic message transmission contains information from the law firm of Lipton, Weinberger & Husick which may be confidential or privileged. Recipients should not file copies of this e-mail with publicly accessible records. The information is intended to be for the use of the individual(s) named above. If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this message is prohibited.

If you have received this electronic transmission in error, please notify us by electronic mail immediately, before we get in really big trouble. If you fail to be intimidated by this notice, we will get angry, stamp our feet, and hold our breath until we turn blue.

Thank you.
(Official-Looking Notice V1.7fc3)
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