Wednesday, May 6, 2009

Email Privacy Targeted by Boucher House Subcommittee

The US Congress is shining a light on the extent to which email can now be viewed by outside 3rd parties.

“The thought that a network operator could track a user’s every move on the internet, record the details of every search and read every email or attached document is alarming,” according to Virginia Congressional Democrat Rick Boucher in his opening remarks before the committee he now heads, the House subcommittee on Communications, Technology and the Internet.

In a hearing on April 23rd, Boucher said he was directing his committee to write an online privacy law this year. Clearly from Boucher’s remarks the new law will involve email privacy. Nevada and Massachusetts are the first states to require businesses to use encrypted email when exchanging personal client information. California has also introduced privacy legislation requiring data spills, including wayward emails with ostensibly personal client data, to be reported to Jerry Brown, the State’s Attorney General. It appears now that within the year a Federal law will also require personal data to be locked down when stored or emailed. This may change the game for law firms reliant on attorney client privilege.

For lawyers, the real question remains whether email will retain its legal mantle for a reasonable expectation of privacy, a term of law setting the bar for attorney client privileged. If email loses its legal claim to a reasonable expectation of privacy, law firms will need to seek alternatives. That’s likely to be either encryption or paper. Email privacy status has already been challenged in cases such as the 1996 case of Michael A. Smyth v. The Pillsbury Company in which company email was held not to offer a reasonable expectation of privacy.

ABA best practices also hinge on whether email offers a reasonable expectation of privacy. If Boucher’s committee stays on track, the extent to which these new laws impact ABA best practices may be felt within the year.

Web solutions for the legal industry include services such as the Lawdex Secure Document Exchange of which I’m a founder.

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