Electronic Mail Law and Legal Definition

Electronic mail, or e-mail, has in large part displaced internal memoranda in most institutions of any size and has also significantly cut down on telephoning as a way of coordinating business. E-mail requires a network of computers or a single computer linked to the Internet. Messages are generated by and read inside mail software like Microsoft's Outlook Express or Netscape Communications' Netscape program. Mail moves to the recipient's address directly through a corporate mail server or over the Internet using a mail-services provider. Most systems enable the user to attach documents to the e-mail message itself. These may be anything digital, be they word processing documents, spreadsheets, photographs, databases, or other electronic letters. Sending software is designed so that the same letter can be sent to multiple recipients; indeed blind or open copies (what in the old days were labeled bcc's and cc's) can be sent as well. An e-mail is delivered almost instantly and thus is like a phone call—but the e-mail recipient need not be there to receive it. These many benefits have made e-mail ubiquitous. It is doubtful that anyone actually knows how many e-mails are sent, but studied estimates have been made. International Data Corporation, a market research firm, has estimated a more than three-fold increase in e-mail volume between 2000 and 2005, to 35 billion messages in the U.S. in 2005, and volume is still rapidly climbing.

E-MAIL PROS AND CONS

E-mail is a genuinely new form of communication combining elements of traditional mail, the telegram, and the telephone. It can be paperless and yet a record is retained; an e-mail can also be printed out. It is very rapid and yet, unlike a telephone call, it is much less intrusive. It can be used at any hour of the day. Once the basic cost of a network or an Internet connection has been justified, email is very cheap. Modern electronic documentation techniques have advanced to such a level that e-mail attachments can be book-sized documents typeset like books, with illustrations embedded. No, we cannot send a baby-rattle with our e-mail, but almost any kind of document is possible.

The negatives of e-mail arise from its very popularity. Virtually all employees in larger organization, especially management employees, complain of overwhelming e-mail volume. Mark Brownstein, writing in Network Magazine, noted, citing various sources, that data stored on disk has more than doubled between 1999 and 2002 (according to UC Berkely), that e-mail volume grows at a rate of 20 percent a year (according to the Radacati Group), and that 3 of 4 electronic documents are unprotected and unmanaged (according to Strategic Research). The management of e-mail alone is absorbing more and more time—so that it appears to be interfering with the very productivity such innovations as e-mail are supposed to be bringing about. Software-based management systems are appearing, but these, of course, add costs. Furthermore, in the wake of corporate scandals like Enron and Worldcom, and legislation aimed at reform such as the Sarbanes-Oxley Act, it has become clear that record keeping practices must be much more disciplined. The courts have found that e-mail must be protected as soon as any kind of investigation begins.

The very volume of e-mail has drawn the attention of legislators who see e-mail as a potentially enormous source of revenue if some kind of e-postage can be imposed. Cost, at present, is not one of the "cons" of e-mail, but, predictably, e-mail will eventually cost more. With a tariff of some kind overlying e-mail (and presumably increasing over time), e-mail may become more manageable but also much less popoular.

Spam

E-mail, being real mail, rapidly came to be abused by organizations sending out millions of unsolicited e-mail messages selling everything from drugs to insurance to pornography. Such unwanted mail became known as spam. Spam is one of the negative phenomena associated with e-mail.

Spam came under relatively mild regulation with the passage of the Controlling the Assault of Non-Solicited Pornography and Marketing Act, also officially called the CAN-SPAM Act of 2003 (Public Law 108-197). It became effective in December of 2003 and took effect on January 1, 2004. The act requires that senders of unsolicited commercial e-mail label their messages, but Congress did not require a standard labeling language. Such messages are required to carry instructions on how to opt-out of receiving such mail; the sender must also provide its actual physical address. Misleading headers and titles are prohibited. Congress authorized the Federal Trade Commissioned to establish a "do-not-mail" registry but did not require the FTC do so. CAN-SPAM also has preemptive features: it prohibits states from outlawing commercial e-mail or to require their own labeling. Since 2003 other bills have been proposed but have not been enacted.

With CAN-SPAM in effect, it is at least theoretically possible to curb unsolicited mail by the tedious effort of answering every piece of spam and filling in an "opt-out" form. Software for controlling unsolicited e-mail is also available; the simplest forms of such control require entering addresses from which mail may be accepted; all other mail is rejected; this technique is very effective but, obviously, turns e-mail into a private communications service. E-mail servers also offer effective filtering services. Nonetheless, a rather negative conclusion must be drawn: with the positive aspects of e-mail go many negative aspects which threaten to erode the effectiveness of this new medium.

MANAGING E-MAIL

The advice offered by organizational experts on handling e-mail boils down to good traditional rules of communication and task management but applied to this medium. Barbara Hemphill, writing in Business Credit, advises senders of e-mail to be clear and brief, to provide sufficient context, and to avoid sending attachments if at all possible. She advises withholding attachments because people fear opening mail with attachments lest they release a virus; if the recipient knows about the attachment, obviously this rule will be unnecessary. The subject line should be a precise capsule of the e-mails content. When answering mail, the essence of the message being answered should be included so that the receiver knows the context—but the bulk of the incoming message can be deleted first. Hemphill's advice to receivers of e-mail deals with sorting and ranking: some mail can be tossed at once, some requires action, some should be filed. If an immediate response is possible, it should be made—immediately. She advises keeping an uncluttered Inbox by keeping messages in separate folders by project.

If the organization is involved in some kind of legal process (as discussed below), deleting e-mail should be done only if its content has nothing whatever to do with the matter under litigation. In this context, and in general, as a matter of good management, important e-mails should be printed and filed in the old, traditional way.

E-MAIL DOCUMENTS ARE RECORDS

Jeanette Burriesci, writing in Intelligent Enterprise, has pointed out that fines in the millions of dollars have been assessed by the Securities and Exchange Commission (SEC) on organizations for failure to keep adequate records. She points out that e-mail has become a main feature of record keeping concerns "because it proliferates so quickly." Intense preoccupation with record keeping has come in the wake of the Sarbanes-Oxley Act passed in 2002 ("SOX"). The act was triggered by corporate accounting scandals and has imposed very strict record keeping requirements on publicly traded companies and accounting firms. As a consequence of SOX, corporations have been retooling their archiving methods, including collecting and classifying e-mail by subject matter and reorganizing back-up systems so that back-up tapes are not periodically reused lest old e-mails are erased.

Small privately held business concerns will, of course, rarely be touched by these issues. However, awareness of what is happening in the larger context of the publicly traded companies is valuable and, in any case, effective management of records benefits businesses of any size. E-mails, by their very character (their sheer number and frequently informal tone) may suggest that they are unimportant—like casual conversation. With new attention on records, it is becoming obvious, however, that electronic communications, no less than those on paper, have legal status. Back in the days when the Internet was still in history's womb (1964), Marshal McLuhan, the high priest of pop culture, coined the famous phrase: "The Medium is the Message." It now turns out that, on the contrary, themessage is the message—and we must manage it regardless of medium.

SEE ALSO Spam

BIBLIOGRAPHY

Ball, Craig. "Retention Policies That Work." Law Technology News. November 2005.

Brownstein, Mark. "Who's Counting?" Network Magazine. 1 November 2004.

Burriesci, Jeanette. "A Record Collection Worth Millions." Intelligent Enterprise. August 2005.

Carr, Jim. "Exorcising E-mail Demons—Midwest investment house MJSK tackles electronic communications compliance issues with a context-sensitive e-mail archiving system." IT Architect. 1 November 2005.

Federal Trade Commission. "The Can-SPAM Act: Requirements for Commercial E-mailers." Available from http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.htm. Retrieved on 28 February 2006.

"For This, They Needed a Survey?" eWeek. 28 September 2005.

Hemphill, Barbara. "Top 10 Tips for Managing E-Mail More Effectively." Business Credit. March 2004.

"Letter: E-mail marketing: say yes to relationships." Marketing Week. 8 September 2005.

Mearian, Lucas. "The 100-year Archive Dilemma: As more organizations store more data longer, the IT industry seeks a better way." Computerworld. 25 July 2005.

Mook, Bob. "Tips for Dealing with E-Mail Overload." Denver Business Journal. 12 January 2001.

Nickson, Stephen. "Spy Mail." Risk Management. February 2001.

"Tech Taboos." Journal of Accountancy. December 2005.

                                Darnay, ECDI