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The politics of email in the workplace

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It's springtime in Washington, D.C. The cherry blossoms have bloomed, the tourists descended, and on both sides of Pennsylvania Avenue a new "scandal" is erupting.

In the Watergate era, there was the controversy about Rosemary Woods and the 18 ½ minute "gap" - a missing portion of a taped conversation of June 20, 1972. Now in connection with "US Attorney-gate" we have a new controversy. The alleged "destruction" of electronic mail sent by employees of the White House through email servers used by the Republican National Committee. The matter raises more important issues for government agencies, companies, ISPs and others. Do I really have an email retention policy, and what emails do these policies apply to?

The US attorney controversy

The immediate issue arises out of an investigation by Democrats on the United States Senate Judiciary Committee into allegations that certain federal prosecutors were fired for improper political purposes. The US Department of Justice asserts that the firings were for perfectly appropriate "performance" reasons and that these prosecutors serve at the pleasure of the President and can be fired for virtually any reason.

The email controversy arose when it was discovered that White House employees may have sent email communications about the US Attorney matter through US government computers or computer systems using email systems operated by the Republican National Committee (RNC.) Unlike most governmental emails, which as I will show have to be retained, there is generally no legal requirement that emails of the RNC be maintained. Thus, at least according to press reports, the emails in the RNC systems were "deleted" after 30 days. Or were they?

Personal vs non-personal email

The issues surrounding the controversy are not limited to the United States government. Every company that maintains a mail system has the problem of what to retain, and how to retain it. In addition to a "corporate" email system, companies may also provide employees with access to personal email. This may be through a separate exchange server, but more frequently, companies may allow employees to access their personal email through some form of webmail, either by POP3 or IMAP protocols. Most email systems allow access to email over the web, including AOL, Google's GMail, MSN, and its Hotmail service, Comcast, etc. While many companies expressly prohibit and indeed block access to personal email through their servers, there are actually legal reasons to permit such access.

Corporate or government email, coming as it does from "whitehouse.gov" or "company.com" carries with it an imprimatur of authority. It can be likened to a corporate letterhead or official government stationary. Yet people use such email for much more casual conversations then they would for a formal corporate letter. Nobody would consider whipping out company stationary to write a letter to their doctor or send a quick note to the girl scout troop leader. But an email - no problem. As a result, corporations and government agencies end up sending "official" email about all kinds of matters which do not relate in any way to official business. Indeed, it becomes difficult for recipients of email to effectively determine which communications are intended to bind the company, and which ones aren't - what the law calls "apparent authority".

Companies can deal with this problem in several ways. First, they can impose an outright ban on any kind of personal use of email. A quick note to the little league coach that Bobby is going to be late because mom has to work late is a policy violation which may result in disciplinary action.

Would such a policy be effective, workable, and enforceable? In most cases, probably not - at least not without a good deal of technology deployed around it, including "white lists" and content filters. One problem with this approach is that it is generally implemented inconsistently, and this can lead to legal problems. For example, a recent case involved a Virginia newspaper that prohibited personal use of its email system, but apparently only enforced this policy when employees used the email system for union organising activity lead to legal problems for the paper.

In that case (pdf), decided March 15, 2007, the court found that the uneven enforcement of the "no personal use" policy meant that the company could not select union activities for enforcement. The lesson is: if you are going to prohibit personal use of email, you'd better prohibit it entirely.

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