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The Politics of E-Mail
Mark Rasch, 2007-04-17

It’s springtime in Washington, D.C. The cherry blossoms have bloomed, the tourists descended, and on both sides of Pennsylvania Avenue a new "scandal" is erupting.

In the Watergate era, there was the controversy about Rosemary Woods and the 18 ½ minute "gap" – a missing portion of a taped conversation of June 20, 1972. Now in connection with "U.S. Attorney-gate" we have a new controversy. The alleged "destruction" of electronic mail sent by employees of the White House through e-mail servers used by the Republican National Committee. The matter raises more important issues for government agencies, companies, ISP’s and others. Do I really have an e-mail retention policy, and what e-mails do these policies apply to?

The U.S.Attorney Controversy

The immediate issue arises out of an investigation by Democrats on the United States Senate Judiciary Committee into allegations that certain federal prosecutors were fired for improper political purposes. The U.S. Department of Justice asserts that the firings were for perfectly appropriate “performance” reasons and that these prosecutors serve at the pleasure of the President and can be fired for virtually any reason.

The e-mail controversy arose when it was discovered that White House employees may have sent e-mail communications about the U.S. Attorney matter through U.S. government computers or computer systems using e-mail systems operated by the Republican National Committee (RNC.) Unlike most governmental e-mails, which as I will show, have to be retained, there is generally no legal requirement that e-mails of the RNC be maintained. Thus, at least according to press reports, the e-mails in the RNC systems were "deleted" after thirty days. Or were they?

Personal vs. Non-Personal E-Mail

The issues surrounding the controversy are not limited to the United States government. Every company that maintains a mail system has the problem of what to retain, and how to retain it. In addition to a "corporate" e-mail system, companies may also provide employees with access to personal e-mail. This may be through a separate exchange server, but more frequently, companies may allow employees to access their personal e-mail through some form of webmail, either by POP3 or IMAP protocols. Most e-mail systems allow access to e-mail over the web, including AOL, Google’s G-Mail, MSN and its Hotmail service, Comcast, etc. While many companies expressly prohibit and indeed block access to personal e-mail through their servers, there are actually legal reasons to permit such access.

Corporate or government e-mail, coming as it does from "whitehouse.gov" or "company.com" carries with it an imprimatur of authority. It can be likened to a corporate letterhead or official government stationary. Yet people use such e-mail for much more casual conversations then they would for a formal corporate letter. Nobody would consider whipping out company stationary to write a letter to their doctor or send a quick note to the girl scout troop leader. But an e-mail – no problem. As a result, corporations and government agencies end up sending "official" e-mail about all kinds of matters which do not relate in any way to official business. Indeed, it becomes difficult for recipients of e-mail to effectively determine which communications are intended to bind the company, and which ones aren’t – what the law calls "apparent authority."

Companies can deal with this problem in several ways. First, they can impose an outright ban on any kind of personal use of e-mail. A quick note to the little league coach that Bobby is going to be late because mom has to work late is a policy violation which may result in disciplinary action. Would such a policy be effective, workable, and enforceable? In most cases, probably not – at least not without a good deal of technology deployed around it, including "white lists" and content filters. One problem with this approach is that it is generally implemented inconsistently, and this can lead to legal problems. For example, a recent case involved a Virginia newspaper that prohibited personal use of its e-mail system, but apparently only enforced this policy when employees used the e-mail system for union organizing activity lead to legal problems for the paper. In that case, http://pacer.ca4.uscourts.gov/opinion.pdf/061023.U.pdf decided March 15, 2007, the court found that the uneven enforcement of the "no personal use" policy meant that the company could not select union activities for enforcement. The lesson is: if you are going to prohibit personal use of e-mail, you better prohibit it entirely.

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Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."
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The Politics of E-Mail 2007-04-26
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