ABA Resolution on E-mail: Does It Help? ^[1]
Micalyn S. Harris, Winpro Inc.

At its annual meeting in Toronto in August, the House of Delegates of the American Bar Association (the ABA's policy-making body) adopted a resolution calling on courts of all jurisdictions to accord attorney-client electronic mail communications the same expectation of privacy and confidentiality as that enjoyed by communications via mail, telephone, cellular telephones and facsimile.^[2] The resolution reads as follows:

The recognition that e-mail is widely used by attorneys and clients for communication, particularly informal communication, makes it desirable that courts, attorneys, and clients consider the privacy and confidentiality issues involving its use. If the intention of the resolution was to encourage courts to establish a rule that any use of electronic communication will not in an of itself be deemed to waive attorney-client privilege for purposes of the rules of evidence, the language chosen fails to make that intention clear. The analogy, implied by the ABA resolution, that e-mail is like telephone calls, the U.S. mail and "other means of communication traditionally deemed private and confidential" ignores the unique aspects of e-mail communication. E-mail is significantly different from both telephone calls and the U. S. Mail. Moreover, courts have recognized differences among various types of telephone and mailed communications (land lines vs. cellular telephone, sealed letter vs. post cards), and concluded that, in some circumstances, they are not private.

E-mail feels like a telephone call. As a result, e-mail communications tend to be informal. Accordingly, such communications are often less precisely worded than would have been the case had communication been in a formal memorandum. Unlike a telephone call, however, e-mail is not ephemeral. E-mail creates a document, and that document may, depending upon the particular mode of e-mail communication, be routinely accessible to a number of people between sender and receiver. Moreover, because computer systems are often backed up daily, weekly and monthly, and backup copies stored off-site, e-mail is likely to be accessible to additional people after it is delivered and "filed." As a result, e-mail may be more widely-available than paper documents and is likely to be long-lived. Thus, the adverse consequences of casual communication, ephemeral and subject to being re-created from the memory in the case of a telephone conversation, are potentially greater in connection with the more or less permanent document created by e-mail.

The resolution's implied analogy to cellular telephones is even less helpful. Cases involving cellular telephones not equipped with automatic scrambling devices have often held that participants in such conversations did not have a reasonable expectation of privacy. Later cellular telephone cases in which expectations of privacy were found to exist were often based on the fact that newer technology automatically scrambled conversations "en route" and unscrambled them only at the receiving end.^[3] If the cellular telephone analogy holds for e-mail, it might imply that in order for e-mail to have a reasonable expectation of privacy, e-mail which travels beyond a closed system (for example, between two entities using the same internet service provider) must be encrypted.

From a technical standpoint, the analogy to facsimile transmissions is also faulty. Facsimile transmissions, like telephone conversations, move from sender to receiver without intermediate "stops." E-mail communications moving via direct modem connection between sender and receiver move in the same way that telephone and facsimile messages move. Communications which travel across the Internet, however, while not broadcast as cellular telephone conversations are broadcast, move in relays and may come to rest on one or more intermediate servers. These intermediate servers may or may not be part of a commercial service provider system. While on these intermediate servers, messages may legally be read by the intermediate systems' operators in the normal course of maintaining those systems. Thus, the risk of disclosure of information to third parties having no obligations of (and perhaps no awareness of) confidentiality requirements or expectations, is greater than it would be with "point-to-point" facsimile transmissions.

Of all of the analogies suggested by the resolution, the suggestion that e-mail communications be treated like communications through the mail is perhaps least helpful. Lawyers and their clients generally mail communications that they wish to keep confidential in sealed envelopes. There is considerable literature, particularly technical literature, which describes sending messages across the Internet as analogous to sending a post card through the mail.^[4] The analogy is apt. Leaving aside the confidentiality obligations of U.S. postal employees, it would be difficult for a third party, even knowing confidential information had been sent from a given lawyer or to a given client on a post card, to locate that post card in the U.S. mail system. Nevertheless, lawyers, and even non-lawyers, do not send confidential information on postcards. They recognize that there is no reasonable expectation of privacy when information is sent by post card. Post card messages are typically casual and innocuous.

U. S. Mail postal employees have obligations of confidentiality regarding the mail they handle, and commercial service providers have, under the Electronic Communications Privacy Act,^[5] similar obligations to their customers regarding the content of the messages they handle (although such obligations may be undercut by the contracts between providers and subscribers). It is at least questionable, however, that such obligations of confidentiality will be or should be extended to noncommercial entities, such as universities, which are part of the Internet and may act as relay stations for messages not addressed to them. The issue is not whether intermediate systems' operators can or should look at these messages. The fact is they can and should and do in the normal course of their work. The only issue is whether lawyers and their clients can be charged with knowledge of how their communications systems work, and with making thoughtful evaluations of the risks and implications of their use in support of the desired conclusion that there is a reasonable expectation of privacy when using e-mail communication for confidential information.

Five years ago, such information was known to relatively few people, and lawyers could argue that it was not reasonable for them to be expected to learn about their e-mail systems. Today, a great deal has been written about e-mail privacy, and the possible lack of it.^[6] Information on the subject is no longer so arcane that lawyers can confidently argue they could not be expected to understand and evaluate the issues.

To date, e-mail has been the subject of successful discovery motions, and the basis for a number of lawsuits that could not have been successful had the e-mail messages been unavailable as evidence. Research to date has disclosed no cases in which use of e-mail between attorney and client has been found to waive the attorney-client privilege. The risk of such waiver however has been recognized, and several states have adopted legislation aimed at assuring that the use of e-mail will not destroy attorney-client privilege.^[7] In the absence of legislation, there is a risk that a court might determine that mere use of e-mail waived the attorney-client or related work product privilege because expectations of privacy were not reasonable.

A draft report of the Task Force on E-Mail Privacy of the Lawyer Business Ethics Committee of the ABA's Business Law Section states,

Several states, including New York,^[8] have adopted legislation stating that for purposes of their rules of evidence, mere use of e-mail will not, it and of itself, constitute an automatic waiver of the attorney client privilege, and presumably the related work product privilege. Iowa has warned that attorneys have an ethical duty to discuss the advisability of e-mail communication with clients and obtain client consent to its use.^[9] The majority of the states which have dealt with the issue, either in relation to their rules of evidence or their ethical rules, fall somewhere between these two extremes.

The advantages of electronic communication are numerous. It's fast, efficient, inexpensive and generally easy. It has, however, risks that deserve to be understood and considered These risks include the fact that applicable law regarding whether there is a reasonable expectation of privacy in connection with e-mail is in a state of flux in many states. Ethical requirements regarding under what circumstances e-mail may be used also differ from state to state, and the technology itself covers a variety of arrangements and is evolving.

Accordingly, before using e-mail for confidential communications, lawyers are well-advised to understand the basics of the specific arrangements they are about to use. Local rules of evidence and local ethical rules and opinions should be checked. Other factors, such as a client's statements and procedures regarding handling of e-mail, may have an impact on whether a reasonable expectation of privacy exists. The risks and benefits of using e-mail must be evaluated in light of all of these factors. Both in the context of litigation and in conjunction with commercial transactions, consideration of these issues, and thoughtful evaluation of the risks and benefits in advance, can help avoid unpleasant surprises regarding disclosure and discovery of confidential information conveyed by e-mail.

FOOTNOTES

1Copyright 1998, Micalyn S. Harris, All Rights Reserved. Cite as: Micalyn S. Harris. "ABA Resolution on E-mail: Does It Help?" 2 wallwtreetlawyer.com No. 5, October, 1998. Text may vary slightly from printed version.