There are very clear laws governing traditional mail. It is a federal offense punishable by a fine and possible jail time for keeping someone from getting their mail. It is a crime to open mail addressed to someone else.
But what about email?
More than 93 percent of Internet users send and receive email messages; 63 percent use email daily. What should someone do if they get an email that is not intended for them? There may be a few lines of legalese at the end of that email — a disclaimer — that attempt to regulate the use of errant email.
Email disclaimers usually express the idea that the recipient of the email is obligated to keep the information in that email confidential and to inform the sender if the sender sent the email to the wrong person. Most say also that the unintended recipient is forbidden from using the information in the email.
“If an arrangement doesn’t exist prior to that (email), and we are talking about the substance of the email and a disclaimer is part of an email, I would say that’s sufficient,” Derek Brown, lawyer and deputy chief of staff for Sen. Mike Lee, R-Utah, said about the binding power of email disclaimers.
Simply put, if people receive an unintended email they could be liable for anything bad that happens if they share the contents of the email. But more often than not, companies aren’t looking for ways to file litigation against the average Joe. In fact, there might be little a company can do if an entity sends an email with privileged info to the wrong person.
“Big healthcare companies spend millions of dollars on having very secure firewalls … disclaimers are just not good enough,” Brown said. He said laws like the Health Insurance Portability and Accountability Act (HIPAA) make any accidental data transmission a major issue. Brown said such breaches of security often need to be reported to the Department of Health and Human Services.
Brown explained that he has received emails from other lawyers who had mistakenly sent him someone’s privileged information.
“You can just hear the horror and panic in their voice as they start to think about what this kind of mistake would cost them,” Brown said. But Brown would simply explain to that lawyer that he would just delete all copies of the email and ask them not to send anything like that to them again.
So, the total viability may not be so cut and dried when it comes to email disclaimers. According to attorney John Hutchins, writing for the American Bar Association’s website, “There is virtually no scholarly analysis of the impact of email disclaimers.” He further elaborates that the idea of email disclaimers having major weight comes from a misunderstanding of the Electronic Communications Privacy Act, which forbids criminal intercept of electronic communications.
“The reality is that few people notice them, and few people stop to read them,” Brown said. “It’s like agreeing to the terms of downloading new software … but the fact that people don’t read them doesn’t mean that they don’t have any legal force and validity.”