Michael Santarcangelo delivers Awareness that Works™
by Aaron Titus The FTC recently announced new guidelines requiring bloggers to disclose when they get freebies in exchange for reviews. Adopted by a vote of 4-0, this is the first update of the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising in 29 years. The rules go into effect on December [...]
Basically, does the government need to rise to the level of requiring a subpoena in order to require your ISP to provide them a copy of your email records, and in the process, notify you that they have done so.Think about that for a second…. As a company, what standard is the government required to produce in order to compel you to provide email records – especially if you are an ISP or other email provider.Based on a landmark ruling this past summer, it appeared the easy answer was “yes.” In the ruling, the United States Court of Appeals for the 6th Circuit held that computer users had a “reasonable expectation of privacy” in their e-mail communications…. The humble beginningThe decision of the 6th Circuit arose out the government’s investigation into Steven Warshak and his company, Berkeley Premium Nutraceuticals, Inc. Warshak was being investigated due to allegation of mail and wire fraud, money laundering, and related federal offenses.
…The 6th Circuit disagreed, ruling that “a seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to a” a 4th Amendment violation. Why is email different?Most Internet users believe that they have a reasonable expectation of privacy in their electronic communications and would be shocked if government agents could snoop around their e-mail box…. As a result, the sender has forfeited any expectation that the ISP would keep the information private and the government should be able to access the content stored by the ISP without a showing of probable cause. Yet while the government is correct in arguing that e-mail is not akin to the telephone, their argument would eradicate any expectation of privacy for any type of communication which requires an intermediary. The fact that an ISP must store and copy the message does not mean that people expect their messages to be turned over to the government by their ISP.
I’d more or less accepted that some used them, while others didn’t – but paid little mind to the question – do email disclaimers matter?During a breakfast a few weeks ago, a friend of mine shared a situation in which a business email sent to an individual was later posted to a website (by the recipient)…. With the help of Patrick Romero, this is what we found:Some Background on DisclaimersTurns out these disclaimers can be used for a whole list of things – from breach of confidentiality to transmission of viruses to employer’s liability…. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.With the prevalence of e-mail communication, statements like these have become more and more ubiquitous among private and public companies – the majority are automatically generated whenever a user sends out any information regardless of the content of the message…. However, ECPA defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”… Can encryption provide privacy and confidentiality email?I have spent a lot of time reminding people recently that “solutions follow requirements” – and I’m always hesitant to recommend a solution without understanding the requirements. However, if you are concerned about the privacy and confidentiality of your email communications, you probably need to investigate the use of encryption.I have always enjoyed learning about and teaching encryption – and while it can be a double-edged sword, it offers the safest means of ensuring privacy of email communications…. In a properly constructed and managed solution, only the designated recipient has the ability to decrypt and verify the message – ensuring the confidentiality of the transmission (this is an overly simplified explanation – if you’re thinking about using email encryption, give me a call and we can talk about specific details).Encryption solutions are available for commercial and personal use…. Think before you press send.One of the best methods for protecting information (note: information protection doesn’t always mean encryption) is to establish and effectively communicate expectations for proper use of email (if you need some help learning how to communicate policies more effectively – pick up the phone and call, it’s what we do).Every organization should put in place a company policy with regards to sending confidential information through e-mail…. In the end, some do, some don’t and you get to choseCurrently, there is little case law or statutory interpretation that discusses the legal rights of senders vis-à-vis e-mail disclaimers.
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