The Constitution and Technology collide
You may recall when I wrote that YouTube would be a new quantum shift in the body politic and that the danger would be that anything said in public would be available almost instantaneously and would have a shelf life of forever. If you thought politicians were cryptic before you ain’t seen nothing yet. There will be no more John F. Kerry bungled jokes. The affect on comedians may be catastrophic.
But wait, there is something that makes YouTube pale in comparison. New Federal rules that go into effect today and that were approved by the United States Supreme Court in April will require, U.S. companies to keep track of all the e-mails, instant messages and other electronic documents generated by their employees.
Reasonable people will ask why. The answer is legal discovery which is used by both sides in court cases. This single ruling will tragically and dramatically change both the way America does business but will also create liability in the computer technology industry where no liability existed before.
The problem is that this ruling creates a new paradox. If the IT department writes over a backup tape they have now committed a new crime of “digital shredding”. No one has any answers of how this can be accommodated. You could use a new backup tape each night but the cost would be prohibitive. Also paradoxical is that now the deletion of an email could be a legal offense perhaps even a criminal offense. So now like the YouTube phenomenon everything you write has an immortal shelf life. Your words and thoughts may out live you in a court of law.
Neither of these new developments will help communication. In fact they will both retard communication at a time when it is needed more than ever. While the YouTube phenomenon is not a violation of the Constitution this new ruling clearly is. Whether a person is at work or at home they have ownership of their thoughts and written works. The only beneficiary of this bungled Supreme Court ruling and Federal Law in the trial lawyers.
On thing is plainly clear. Neither the U.S. Federal government nor the U.S. Supreme Court understands technology and it’s relation to the Constitution. While people have a personal right to be secure in their thoughts and their papers somehow this right has been lost in the workplace. The Founders of this Nation must be turning in their graves.
There needs to be a reckoning between reasonable discovery process and the Constitutional rights of citizens.
December 1st, 2006 at 3:06 pm
will require, U.S. companies to keep track of all the e-mails, instant messages and other electronic documents generated by their employees.
I guess we’ll have to resort to ordinary talking.
December 1st, 2006 at 3:39 pm
I think you misunderstand the scope of the ruling. It only companies and electronic documents involved in Federal litigation.
Furthermore, a little bit of speculation on my part, I don’t think it applies to messages which are not recorded. For example if the instant message system doesn’t actually write any messages to disk then companies don’t need to modify the IM system to keep copies of the messages. It’s only messages that are already stored that need to be kept. Another example is email. If the policy of the company is to delete all email older than six months old then that’s fine–as long as those emails aren’t involved in Federal litigation. In that case the existing emails would then have to be kept, and perhaps shared via discovery, until the litigation was completed.
December 1st, 2006 at 3:58 pm
I think you misunderstand the scope of the ruling. It only companies and electronic documents involved in Federal litigation.
I believe for some time that in civil lawsuits the discovery process for emails is the same. A person I know had to turn over all emails in a court case. Not just the ones that pertained to the case but all emails. I questioned whether this was proper. It seemed to cross the line.
I haven’t seen the Supreme Court ruling or the Federal law. But let’s say for discussion you are correct, when does the clock start? Joe, over in IT, erases some emails on Saturday to free up some disk space, Monday the Fed’s come in with legal papers, is Joe in trouble?
Continuing with the idea it is only for Federal litigation, what about the fourth Amendment? How does this ruling trump the Fourth Amendment? A large company can have ten’s of thousands of employees. Do they all surrender their basic Constitutional rights to work for a big company?
Considering the erosion of liberties I now feel email should be used only when absolutely necessary.
On another note, I have heard of bloggers sued for libel whose computers are subpoenaed for discovery. Where is the fourth amendment protection there?
First cars, then computers, is the fourth amendment dead?
December 1st, 2006 at 4:10 pm
You know, when the founders wrote the constitution, they didn’t have Al Gore’s Internets.
Wait, that sounds familiar.
December 1st, 2006 at 4:33 pm
Note that the idea that “copying over backup tapes is illegal shredding” was not part of the rules, but suggested by a layer, and quotes another lawyer: “Companies will not have to alter how they retain their electronic documents, she said, but will have to do an “inventory of their IT system” in order to know better where the documents are.”
I don’t see how the 4A rights of employees are greatly affected by this. Given that the things in question in discovery are those already stored by the company, and are supposed to be company property (ie, one is not supposed to use the company’s email system for personal mail at most companies anyway, and one definitely has no expectation of privacy in most cases, that I’ve ever seen), I don’t see the problem. I don’t see the unreasonable search.
What erosion of liberties? I remind #9 that the Constitution contains no right to privacy as such, and that it protects only against unreasonable searches. A discovery claim against a company, for corporate email, in context of a lawsuit (which discovery is to the other side’s lawyer, not the police powers of the State, and done under court order) is not obviously an unreasonable search.
I repeat something I’ve said many times and many places: Just because we don’t like something, doesn’t make it unconstitutional.
December 1st, 2006 at 4:54 pm
From the article:
While the amount of data will be narrowed by electronic searches, some high-paid lawyers will still have to sift through casual e-mails about subjects like “office birthday parties in the pantry” in order to find information relevant to a particular case.
Martha Dawson, a partner at the Seattle-based law firm of Preston Gates & Ellis LLP who specializes in electronic discovery, said the burden of the new rules won’t be that great.
Companies will not have to alter how they retain their electronic documents, she said, but will have to do an “inventory of their IT system” in order to know better where the documents are.
Discovery has its place. The problem is when discovery is expanded beyond the scope of the lawsuit. No reasonable person would object to emails that pertain to the case to be part of discovery. But does this new ruling allow that to be expanded to all emails? How about all the emails of people in that persons “Sent To” items regardless of whether they are employed by the same company?
The war on drugs has allowed an expansion of warrantless searches to automobiles. An American citizen no longer has an absolute right to carry two thousand dollars in cash on their person. Depositing $11,000 of cash into a bank can cause legal problems. How strong is the fourth amendment? Has it become for all purposes obsolete? An anachronism?
December 1st, 2006 at 7:40 pm
When I started work at my present company, which has been involved with Federal litigation, a great deal of effort went into how to deal with email for precisely this reason. Again and again they told us to delete everything you don’t need–unless you have been notified by legal not to delete it.
As a matter of policy backup tapes of email are only kept for a few days. Unless we have a very good reason we are not to make our own backups. If this ruling changed anything I’m certain our legal department would have notified us. They have not.
So… to answer your question about deleting something then being issued a subpoena the next day I’m pretty sure (I’m not a lawyer, this is not legal advice, this opinion is worthy less than what you are paying for it, blah, blah, blah) the answer is “I’m so sorry, you just missed it.” In other words you can no longer delete relevant material once you have been legally notified. Stuff deleted two minutes earlier is exempt from punishment.
All email cannot be requested just from a practical standpoint. If there are 100,000 people in a company and each generates 10 pieces of email each day for 200 work days then we are talking about 20 million emails that must be examined by the lawyers for each year that you go back.
Also of issue is that someone could file some nit-picky lawsuit about some little thing and end up getting access to every piece of proprietary information in the company. This is so unreasonable that it won’t happen even if some Federal regulator willed it to be so.
December 1st, 2006 at 7:42 pm
The company that I work for has a policy that all emails be deleted within 2 weeks unless the content is still needed for work purposes. The policy was implemented a couple of years ago in response to the cost of producing the stored emails as part of the discovery process in a lawsuit.
It was NOT to hide anything; they just don’t want to spend huge amounts of money to catalog and provide to the lawyers millions of emails that have nothing to do with the controversy at issue. They just said “delete stuff with no current business use” — the same thing we do with printed paper that we no longer need.
December 2nd, 2006 at 12:34 am
Sigivald says “that the Constitution contains no right to privacy ….”
Sigivald is wrong. If he meant to say the words “right to privacy” are not in the constitution, then he should have and he would have been correct.
However the fourth amendment to the constitution says “The right of the people to be secure in their houses,papers and effects against unreasonable searches and seizures, shall not be violated, ……..”
As such, it is the very definition of privacy. It goes on to describe what is considered reasonable cause to violate that security, which is privacy. Despite rulings and opinions from legal scholars the language is very clear. If there be a better definition of privacy, let’s see it. None can do so. It is a dishonest tactical ploy to violate the fourth amendment by claiming no right to privacy exists in the constitution.
That is why I am ever so glad Robert Bork was “Borked”. He simply isn’t smart enough to sit on the USSC. Or if he was, he didn’t have enough integrity to do so.
That is one of the reasons Right to Lifers keep losing the abortion argument. They argue from a false position, because the court decided Roe v. Wade on a false premise, and thus, wrongly. They expected abortion to be a dirty little secret between a physician and his patient. It was the first “Don’t ask, don’t tell” and it was a political decision unrelated to the entire rest of the body of the law. As proof, I offer that it still is in opposition to the rest of the body of the law. However, that is an argument for another time, and is only mentioned here because opposition to abortion by social conservatives and religious organizations was the impetus for the false claim that there is no right to privacy in the constitution.
A case, as someone above noted, of “I don’t like it, so it’s unconstitutional”. The mistake was they argued against a false premise for the decision and by doing so had only the interpretation of the constitution to overcome. Until that time there was no question is anyone’s mind about the right to privacy being a protected tenet under the constitution.
December 3rd, 2006 at 9:27 am
Picky, picky. Add the word “general” to Sigivald’s statement, and it is 100% correct, as was his point. This new rule may be unreasonably burdensome for companies, but it doesn’t affect any correspondence in which the individual employees have a reasonable expectation of privacy now.