To: "SEAINT List Server" <seaint(--nospam--at)seaint.org>
Subject: E-Mail Disclaimers
From: "Stamper, James H." <JStamper(--nospam--at)heery.com>
Date: Sun, 9 Sep 2001 18:27:06 -0400
Disposition-notification-to: "Stamper, James H." <JStamper(--nospam--at)heery.com>
I got a real kick out of this thread when I first saw it, because I find
these worthless e-mail disclaimers extremely irritating. However, in
light of some of today's responses, I feel that I too must comment.
I agree that these disclaimers are not intended to protect against SPAM.
If they were, they'd protect only the ISP's that are responsible for
private e-mail somehow being hacked on their systems and turned into
SPAM. However, the disclaimers aren't generated by the ISP's, they're
generated by individual e-mail senders, usually their misguided
corporate IT people that attach them automatically to all outgoing
business e-mail. The ISP's surely know that such disclaimers wouldn't
insulate themselves from any actual negligence on their part.
However, I also disagree with Drew Norman and R. Pixley that these
disclaimers are related to attorney-client privileged communications.
That is a whole different issue, separate and distinct from ordinary
business confidentiality where no legal "privilege" exists. Basically,
in ordinary business communications, if one wants something to remain
confidential, then the burden is entirely on the business participant to
maintain the confidentiality. Bill Gates learned this the hard way when
the DOJ subpoenaed his "confidential" incriminating e-mail, and most of
it was internal e-mail, not even Internet e-mail.
Personally, I never use e-mail for attorney-client privileged
communications, because everyone knows that it simply isn't secure or
truly confidential. If I did, I would at least place the actual
attorney-client privileged communication in a separate
password-protected document attached to the e-mail (perhaps even
encrypted), with "Privileged and Confidential" boldly displayed across
the top and the addressee separately noted, just like in a conventional
While we're at it, simply invoking attorney-client privilege, in and of
itself, won't "assure that the professional opinions... are kept
private." A certain amount of due diligence must also be exercised by
the participants to maintain the confidentiality, and as an ordinary
citizen it is not mine or anyone else's responsibility to maintain it
for one if one carelessly mails to me his "privileged" communications.
However, an officer of the court is certainly held to a higher standard.
Invoking attorney-client privilege in a communication will only assure
(usually) that the contents are not discoverable or usable as evidence
in a legal proceeding. However, if a client's attorney accidentally
puts a legally "privileged" communication in the wrong envelope
addressed to the New York Times, it very likely will become public even
though it may still be excluded from legal proceedings. Of course, such
an attorney would likely be subject to a very strong malpractice suit
(ha, ha, ha...). Even the National Security Act can't assure that
information remains private -- remember the Pentagon Papers?
The idea of a disclaimer assuring confidentiality in ordinary business
communications is even more of a myth -- and that's what they are
intended for, since 99.9 percent of all Internet e-mail messages that
contain these disclaimers are only ordinary business communications. If
someone accidentally puts naked pictures of his wife in the wrong
envelope, and the envelope is addressed and delivered to me, then it's
his problem (and perhaps her's), not mine. I'm not obliged to notify
him, I'm not obliged to avoid looking at them, and I'm certainly not
obliged to return them. Similarly, if Gary Condit accidentally e-mails
to me the address of his love nest, then I'm entitled to use it anyway
that I see fit, including selling it to the National Enquirer. How
could I or anyone else know that I'm not the "intended recipient"?
Presumably, I am, since he sent it to MY e-mail address. Perhaps he had
subconscious motivations that I couldn't possibly fathom.
I strongly suspect that the first of these insidious e-mail disclaimers
was originally created by some silly in-house corporate counsel (most
good counsel are practicing real law), to placate the concerns of his
computer illiterate CEO who feared how to protect "our confidential
business information" from this scary, new, wide-open thing called the
Internet. Of course it didn't, and doesn't. At best, when the
advertising agency accidentally e-mails the projected figures for
Coca-Cola's new marketing campaign to Pepsi's people, the advertising
agency can claim CYA via "our disclaimer". Does anyone really believe
that would satisfy Coca-Cola?
Unfortunately, the Internet is now so prolific that it necessarily
includes a lot of moronic sheep. Lots of these stupid sheep have seen
these disclaimers and said, "Hey, that e-mail disclaimer looks like it
must be important, so I guess we should do it too" (I wish the sheep
would all follow the one that walked off the cliff). A lot of the
participants on this list service must also have such sheep in their
organizations. Luckily, and somewhat surprisingly, our company hasn't
added these automated disclaimers yet, although I did notice about nine
months ago that one of our VP's has added such a disclaimer to his
automated e-mail signature. Coincidentally, he is quite possibly the
most computer illiterate person in the division.
Let's get rid of these useless disclaimers (wishful thinking). They do
nothing but interfere with the readability of messages, eat up
bandwidth, and clog the pipes. Oh, yeah -- they make the sheep feel
like they've done something.
James H. Stamper, PE (Jim)
Senior Structural Engineer
Heery International, Inc.
Atlanta, Georgia 30309-3953
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