Just in case you thought your email was private

It’s not:

According to new federal rules that went into effect Dec. 1, schools, businesses, and other organizations are required to keep tabs on all eMail, instant messages (IM), and other digital communications produced by their employees.

The rules, first approved by the U.S. Supreme Court in April, have been widely reported as important for businesses and other for-profit enterprises. But, according to legal experts familiar with the case, the High Court’s ruling also applies to public schools and other nonprofit organizations.

The ruling–which states that any entity involved in litigation must be able to produce “electronically stored information” during the discovery process–the process in which opposing sides of a legal dispute must share evidence before trial–could have significant implications for school technology departments, especially in places where technicians routinely copy over backup discs and other information housed on school servers….

“We have a policy that employees need to sign indicating they have no right to consider anything that they do on our network–including our [voice-over-IP system]–as confidential,” wrote Marc Liebman, superintendent of the Berryessa Union School District in San Jose, Calif.

But even that isn’t enough, explained Lindsay–not anymore….

For schools and other entities that often require the assistance of legal counsel, the rules also could translate into higher costs, experts say. Not only will organizations need to find a method of cataloging and searching through eMail and IM in the event of a lawsuit; they also might consider investing in technology that helps them filter through digital photos stored on employees’ phones and information tucked away on removable memory sticks, among other portable devices….

Complete List of Amendments to the Federal Rules of Civil Procedure
http://www.prestongates.com/westlaw/Rules%20with%20Notes.pdf

Letter from Committee of Rules and Practice of Procedure outlining the new rules
http://www.uscourts.gov/rules/supct1105/Summary_Proposed_Amendments.pdf

(Hat tip to Adri at Library Stories.)

Advertisements

About James G. Milles

Professor of Law, SUNY Buffalo Law School

Posted on December 9, 2006, in Privacy, Technology. Bookmark the permalink. 5 Comments.

  1. This is just horrible. Of course there is a chance that smart people will use encryption and other ways to protect their privacy – but not many will think of that . I am glad that I don`t live in the States , even trough this is going to happen elsewhere as well – hopefully there will be people and communities which will oppose such unfair actions .

  2. uhm, people still think their email is private? Hilarious.

  3. Encryption may, I suppose, keep the text of your email hidden from your supervisors and network administrators, but won’t do anything to protect it from e-discovery in event litigation. Jennimi, I wonder what UB is doing to store copies of all the emails we’ve ever sent?

  4. I am not so sure – if used properly the encryption can be pretty powerful tool – after all the regular user is not working that FBI for example may be looking at his mails – and 256 bits is just enough to prevent everyone else.

  5. Skykid, it doesn’t matter if encryption is technically hard to breakt. If the email is discoverable in the course of litigation, the email must be decrypted. I’d need a civ pro expert to verify, but I suspect failure to provide decrypted email result in a contempt of court order, a default judgment for the other side, or even criminal penalties.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: