PDA

View Full Version : Lawyer question: "Intended recipient of this email" warning



SpoofyChop
09-14-2009, 08:02 AM
At the place where I work, a lot of people affix a warning of sorts to the bottom of emails they send.

The warning tends to say something like this:


This email is intended only for the person to whom it is addressed and may contain information that is privileged and exempt from disclosure. If you are not the intended recipient of this please be aware that forwarding or distributing it is strictly prohibited. Please notify the sender blah blah...

Is this just legal FUD or are there really laws that would allow you to be prosecuted? Lets say that I accidentally get an email from Apple that details the next iPhone. Obviously I can conclude that I'm probably not the intended recipient, but I put it on my blog because it's a huge scoop.

But what obligation do I actually have to follow this warning? It seems to me that journalists intercept this kind of thing all the time (or it's forwarded to them etc).

Given that "freedom of the press" does not turn journalists into super-citizens but rather ensures that citizens at large have the freedom to print and disseminate news and opinions (although in practice the govt rarely gives citizen journalists the same rights as high profile journalists), how exactly can people gag somebody who accidentally gets information that the sender just doesn't want them to have?

nutsak
09-14-2009, 08:16 AM
IANAL but if anyone sent me shit that wasn't meant for me then too bad and they should learn to use a computer.

.. which basically means tell me about the new iphone.

... and if it can give me a bigger penis.

extarbags
09-14-2009, 08:20 AM
These are hilarious.

Destarius
09-14-2009, 08:26 AM
It puts you on notice that the information is confidential which may give some basis to an action for breach of confidence.

Although I'm not an expert in this area of the law (of course, this is where my colleagues would mock me and say I'm not an expert in ANY part of the law), personally, my view is that the footer may mean jack-shit though, since you owe no duty to the moron who sent it off wrongly.

However, if it is information covered by legislation (as in said information is an Official Secret), then passing on that information may be a criminal offence. But in such cases, it would usually expressly state the law which covers the communication in the closer ie "This email and its contents are protected under the XXX Act and the unauthorised transmission thereof may amount to a criminal offence". So watch out for those.

jason
09-14-2009, 08:41 AM
IANAL, but in my experience, those types of warnings are not intended to threaten people who accidentally get emails they shouldn't but to remind people who got emails they should not to forward them to people who shouldn't get them.

For example, if you got an email detailing the new features of the next iPhone, that warning really isn't there to keep you from posting it on your blog (although it sounds like it is and Apple, being Apple, might actually send you a stern letter asking for the post to be taken down), but instead gives Apple the "we did warn you" footing to fire your buddy who works for Apple and sent you that email since it was originally sent to him and he was not supposed to forward it.

Miramon
09-14-2009, 08:54 AM
IANAL, it's almost-meaningless noise that serves only to communicate the sender's ignorance.

Tim James
09-14-2009, 09:04 AM
Based on the corporate training I've received (heh), I'd think it has more to do with accidentally receiving proprietary information from competitors. If someone forwards me an email from Bob's Widgets about their summer lineup, I can't work off that without legal problems for my company. That's when you have to get your own corporate lawyers involved to make sure the slip up is documented so you can show no malicious intent.

Leaks and bloggers seem to be a different issue, but I don't know.

Lorini
09-14-2009, 09:27 AM
My understanding is that the message has to clearly delineate how the information contained in the message is protected by law/regulation.

Otherwise I could send messages that said "The recipient of this message now owes me one million dollars, to be deposited in my escrow account located at xxxxx" and have them be enforceable. Which clearly they aren't.

Bad Neighbor
09-14-2009, 09:57 AM
Looks like Chet gave up on Do Not Reply (http://web.archive.org/web/20071001225327/http://www.donotreply.com/) (since we're talking about people putting stuff in their email that displays their ignorance).

Fugitive
09-14-2009, 10:03 AM
It puts you on notice that the information is confidential which may give some basis to an action for breach of confidence.

Although I'm not an expert in this area of the law (of course, this is where my colleagues would mock me and say I'm not an expert in ANY part of the law), personally, my view is that the footer may mean jack-shit though, since you owe no duty to the moron who sent it off wrongly.

However, if it is information covered by legislation (as in said information is an Official Secret), then passing on that information may be a criminal offence. But in such cases, it would usually expressly state the law which covers the communication in the closer ie "This email and its contents are protected under the XXX Act and the unauthorised transmission thereof may amount to a criminal offence". So watch out for those.
I remember this coming up once before, though I can't find the thread, and I think this was pretty much the consensus. The information may be protected, but if it is, it's something else that gives the information that protection. The presence of that disclaimer in the email does not automatically extend that protection, and is actually inapplicable the vast majority of the time.

RickH
09-14-2009, 10:34 AM
Is this just legal FUD or are there really laws that would allow you to be prosecuted?

It's not about prosecution. The boilerplate language is there to state the intentions of the sender, who informs the reader that the information is meant to go only to the addressed person and is not intended for redistribution.

One of the most significant obligations an attorney has is to maintain a client's confidential information. When communicating using methods like email and faxes, the possibility of unintended transmissions exists. In the worst-case scenario, the wrong button gets hit and the other side gets things they shouldn't get, and aren't entitled to get. The first thing you do in that situation is run to the court and seek to have that evidence excluded. (Sometimes, the other side won't acknowledge they have the info/docs until they try to "spring" it on someone in cross-examination.)

The fundamental principle here is that when information is privileged or confidential, it is the client's privilege or confidence to waive, NOT the attorney's. Thus, privilege/confidence can be maintained despite accidental disclosure.

The first thing the court will do when determining whether waiver occurred is "what reasonable steps did the attorney take to maintain the confidentiality of the information?" Among these steps is including specific language that the transmission is indended to be a confidential communcation to a particular individual. That way, the other side that wants to use the info in litigation can't exactly claim they were lacking notice that the info wasn't part of the normal discovery process and wasn't meant for them.

Thus, the inclusion of standard language as a sig. Personally, I think attaching it to every little communication dilutes the significance of the notice, but asses must be covered.

Timemaster Tim
09-14-2009, 10:55 AM
The fundamental principle here is that when information is privileged or confidential, it is the client's privilege or confidence to waive, NOT the attorney's. Thus, privilege/confidence can be maintained despite accidental disclosure.


That may be true for attorneys, but that boilerplate gets slapped on automatically by email systems in a lot of companies that aren't law firms.

It also intends to put an obligation on my part not to divulge the information. But did I agree to it? Nope.

RickH
09-14-2009, 10:58 AM
It also intends to put an obligation on my part not to divulge the information. But did I agree to it? Nope.

So, you're inferring an attempt to create a contract and then criticising your inference-created scenario for failure to include consideration? Probably too attenuated there.

Lorini
09-14-2009, 11:02 AM
Rick, there's no contract. Unless the information is legally protected anyway, there's no way anyone could be prosecuted for divulging that information. If you as an attorney divulge my confidential information and then claim that putting that notice in an email protects you, we'd just have to see about that in court.

Fugitive
09-14-2009, 11:44 AM
Upon rereading it, you could interpret it as saying that you just can't redistribute the specific email. There could actually be a legitimate copyright claim on it that would prevent you from, say, forwarding a full copy of the email, but the information itself is not protected. But who knows if that was actually their intention or not...

Destarius
09-14-2009, 11:58 AM
For anyone bored enough to hang around in this thread (http://www.fmew.com/archive/LatestArticle/index.html).

Marged
09-14-2009, 12:01 PM
IANAL, it's almost-meaningless noise that serves only to communicate the sender's ignorance.

Not necessarily re: the latter. I have had supervisors who required me to include it on my emails.

Lorini
09-14-2009, 12:14 PM
For anyone bored enough to hang around in this thread (http://www.fmew.com/archive/LatestArticle/index.html).

Great link. Except it doesn't specifically address that warning. What that warning appears to do is to allow let's say a doctor disclose private medical information to someone other than his/her patient, and still conform to patient confidentiality laws. Now IANAL either, but I think it would be pretty shitty if a doctor could disclose your medical information to a third party (like National Enquirer let's say) without you being able to successfully sue him for breach of confidentiality.

Rickh may know more, but like I said, disseminating confidential information involving a third party (which some of these letters do) and then hiding behind that statement (which the recipient never agreed to do) seems very shady legally.

Destarius
09-14-2009, 12:34 PM
Now IANAL either, but I think it would be pretty shitty if a doctor could disclose your medical information to a third party (like National Enquirer let's say) without you being able to successfully sue him for breach of confidentiality.

You'd probably be able to build a case for negligence. The disclaimer doesn't protect him from that in any event; but the tricky bit in all such cases is not really breach, but damage.

Normally the remedy you'd be seeking isn't so much money, but trying to stop publication of the disclosed material. That's where it gets iffy.

pogozorro
09-14-2009, 12:34 PM
However, if it is information covered by legislation (as in said information is an Official Secret), then passing on that information may be a criminal offence. But in such cases, it would usually expressly state the law which covers the communication in the closer ie "This email and its contents are protected under the XXX Act and the unauthorised transmission thereof may amount to a criminal offence". So watch out for those.

I would look at legislation such as the Privacy Act, the Americans with Disabilities Act, or the Genetic Information Non-discrimination Act before considering any officially classified information being released through this. Actual, honest-to-god classified data can only be transmitted and received on appropriately cleared systems (and in most cases will not send to unclassified networks).

However, privileged, but not restricted information would be a bit more applicable. If you're my boss and I tell you I have to take a week off because my vagina/penis spontaneously exploded due to a chronic medical condition, you cannot just start forwarding the email around because it is funny. In Federal government land, you see HR, EEO, legal, and inspectors general with those sorts of addendums all the time.

Destarius
09-14-2009, 12:41 PM
Actual, honest-to-god classified data can only be transmitted and received on appropriately cleared systems (and in most cases will not send to unclassified networks).

It's really not hard to send classified data out to an unsecured network. People do it all the time. The weakest security link is human.


If you're my boss and I tell you I have to take a week off because my vagina/penis spontaneously exploded due to a chronic medical condition, you cannot just start forwarding the email around because it is funny.

Well, largely because HR will be all over him like embittered tribbles, not really because it's confidential, if your boss shares it among his boss peers. Then again if your penis-vagina has exploded you probably have bigger things to worry about.

anaqer
09-14-2009, 12:52 PM
Smaller, actually.

RickH
09-14-2009, 01:23 PM
Rick, there's no contract. Unless the information is legally protected anyway, there's no way anyone could be prosecuted for divulging that information. If you as an attorney divulge my confidential information and then claim that putting that notice in an email protects you, we'd just have to see about that in court.

Agreed. When the issue comes up, it's usually between attorney and client, or between opposing parties' counsels.

As far as liability goes, there are three possible levels for attorneys: (1) criminal, which I don't think is implicated here, (2) civil, wherein the discloser can get sued for damages caused by the act of disclosing, and (3) disciplinary, where the attorney could have his license suspended or taken away for not following the rules that govern the profession.

But my focus is really on the sender. Is the recipient legally bound by ANY language stuck on the end of a email? I seriously doubt it.

Rywill
09-14-2009, 01:33 PM
Yeah, I always took this as a way to limit unintentional waiver of any sort of privilege or confidentiality. In other words, it imposes no duties on the recipient and isn't even trying to impose duties on the recipient (although I guess maybe the way it's worded, I can see someone thinking that way. Maybe that's even intentional). It just sets out the intention of the sender, so that if anyone ever says "You released this information to forward-recipient person X" or "You released this information to the general public," the sender can say "No, I made it very clear that the only person I was releasing this information to was the original recipient and that I didn't want it to go any farther than that."

When I was a defense attorney, my firm automatically appended that language to every outgoing email. Now that I'm a prosecutor, my emails have no signatures at all. I assume that's because I don't have any privileged relationships with anybody anymore (although I do have access to lots and lots of confidential information).

SpoofyChop
09-14-2009, 01:53 PM
Very interesting...thanks Rywill!

pogozorro
09-14-2009, 03:32 PM
It's really not hard to send classified data out to an unsecured network. People do it all the time. The weakest security link is human.

It is, but the systems, at least on the military side, have redundancy. Also, they have been shored up tremendously over the past year, maybe two.




Well, largely because HR will be all over him like embittered tribbles, not really because it's confidential, if your boss shares it among his boss peers. Then again if your penis-vagina has exploded you probably have bigger things to worry about.

It is confidential in so much as only those with the explicit need to know can be informed by the boss. The employee can reveal as much as they want, but woe be to the manager who spills the email about penis-vagina exploding person. People have made hundreds of thousands left and right for disclosures such as these, assuming the leak makes it back to the employee.

Damien Falgoust
09-14-2009, 07:41 PM
Rywill's explanation is the reason I stamp that on all my emails as well.

Murbella
09-14-2009, 07:44 PM
People passing along those racist/sexist emails that get them fired should have put these disclaimers on them!

John Many Jars
09-14-2009, 07:48 PM
IAMANAL

robsam
09-14-2009, 08:01 PM
"embittered tribbles" hehehehehe, thanks for that Destarius!

My wife's company has that damned appendage language on every email, as did the company I worked for (may it die a fiery death) before I got laid off, my new company thankfully doesn't make us do that. I understand why the disclaimer is there, but it is so annoying, I like to clean up emails that I reply to or forward, no need to make the next guy in the chain have to suffer through that wall of text...My wife will reply to one of my emails with "7:00" if I ask her when the game is tomorrow, closely followed by that damned disclaimer...it really is too much.

Miramon
09-15-2009, 07:49 AM
Not necessarily re: the latter. I have had supervisors who required me to include it on my emails.

Could be communicating the supervisor's ignorance, instead, then :) But I am usually embarrassed for the sender (if the sender is not a lawyer) if they include a legalese signature.

Fugitive
09-15-2009, 07:50 AM
Could be communicating the supervisor's ignorance, instead, then :) But I am usually embarrassed for the sender (if the sender is not a lawyer) if they include a legalese signature.
It's often automatically attached by the corporate email system and the sender has absolutely no control over it.

Miramon
09-15-2009, 08:37 AM
It's often automatically attached by the corporate email system and the sender has absolutely no control over it.

That's why I'm embarrassed for them; it's not their fault but they have to send out this idiotic postscript.

Destarius
09-15-2009, 09:11 AM
Now that I'm a prosecutor, my emails have no signatures at all. I assume that's because I don't have any privileged relationships with anybody anymore (although I do have access to lots and lots of confidential information).

Funny. When I was a prosecutor, the signature was a required boilerplate. If anything it does make people wonder whether it is legally enforceable. Not everyone knows the law.

It's like those disclaimers on rides saying you can't sue them for getting injured. Riiiiight.