Slashdot Mirror
Judge Thinks Delete Should Mean Delete
leighton writes: "According to The New York Times (free registration required, for those who care about such things), a prominent judge recently wrote an article saying that the delete key should actually delete things, not just hide them away where lawyers and skilled computer geeks can get at them years later. Specifically, he proposes that a statute of limitations be imposed upon electronic messages--that, for example, an obnoxious email you send today could be held against you for six months and six months only." This is an astonishingly insightful idea - since electronic communication has changed the lifespan of casual conversations from ephemeral to permanent, it's possible for the law to change its standards to restore that ephemerality. The judge's original paper is linked off of The Green Bag.
And the space bar.
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What is the judge worried about, anyway -- his wife finding his online porn stash, or e-mails to his mistress? Just use decent encryption and utilities like PGP, and you'll be fine.
This judge really sounds paranoid. What he needs is a secure delete program, an operating system which doesn't store remnants of temp files everywhere, and an sledgehammer to "obfuscate" his disk when he gets a new PC.
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All generalizations are false.
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I like to watch.
The judge is not talking about criminal law, but civil law. In criminal law, evidence does not "expire", but as you cannot be prosecuted for certain crimes after a given period of time has passed since the alleged offense, the evidence is moot. The idea is that you shouldn't throw a forty-year-old man in jail for a red light he ran when he was eighteen. I should point out that in most jurisdictions there is no statute of limitations on murder and other infamous crimes.
What the judge is trying to do is limit the viability of e-mail in civil litigation. Hypothetical situation: four years ago one of your coworkers made a huge, obsessive, gigantic stink about something, and you end up wasting an entire week chasing shadows as a result. When you tell her she was wrong and wasted your time, she fires off an angry e-mail to your boss. Your boss forwards it to you with a note attached, "What's this about?" You reply, "Remember how I showed you that Foobley component wouldn't work in the Warbley project? She's still bitching about it." He writes back one line: "I figured as much."
After four more years of similar raving nonsense on every single project she's on, nobody takes her seriously about anything anymore. Feeling like there must be some other reason she's been ostracized, she quits the company and sues for sexual harassment. All e-mail records from every employee she has ever worked with get subpoenaed. Your e-mail from four years ago is dredged up. And in it, ladies and gentlemen of the jury, this bigoted, sexist monster used the vile, derogatory term "bitch" to refer to my client, a person of gender! This degenerate, immature pig used vicious, defamatory language in the workplace, thereby creating a hostile work environment for my poor victimized client. And instead of taking immediate corrective action, this penis-monster's boss, another penis-monster, conspired to agree with the characterization! There was collusion, sexism, and conspiracy at every level of this corporation to single out this innocent victimized woman. Therefore this penis-monster and his employer owe her one million dollars plus another twenty million in punitive damages.
Fun, huh?
Look---I send a lot of e-mail to coworkers who are only two or three cubes away. That way, our conversations can be asynchronous. The fact that we are using a written medium does not mean the conversation is not intended to be casual and ephemeral. The fact that I delete a piece of e-mail means that I consider it no longer relevant; either that I no longer endorse what it says or that I believe its context has disappeared. Say your boss is a Cardinals fan. He starts ridiculing the Braves in front of you and another Braves fan coworker. You tell him right to his face that he's full of shit, and he laughs and asks what the weather will be like in Atlanta for the last game of the series. Later, you send coworker an email that says "He's so full of shit!" You weren't talking about his qualifications as a manager; you were discussing his bogus sports opinions. But taken outside the context of the previous conversation, and your company has grounds to deny you a raise or fire you. After all, there it is in black and white, you saying your boss is full of shit.
I believe these are the sort of situations Hizzoner was referring to.
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This is not my sandwich.
I don't see why electronic data should be any different than any other kind. If I write something down, it will still be admissible in 6 months. Same with something I say. Why should it be different if it's in an electronic format? If I throw something in the trash, is it forever gone? Not a chance. It's perfectly legal for the cops to search my trash, same with electronic files.
As far as true deleting goes, there are numerous programs that will do it for you. Many programs have a "shredder" function, which permanently deletes a file. It's no different than a paper copy. I can throw it away, but if I want to make sure it's really gone, I have to use a paper shredder. Same concept applies electronicly. I can delete it, but if I really want to make sure it's gone, I need to use a "file shredder". Just because it's electronic doesn't make it different.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
Judge Rosenbaum points out that the incompleteness of deletions (as they stand now) is affecting the legal system and indirectly, everyday activity. Lawyers are going to go after any electronic record they can get and use it to their best advantage. Everybody has to cope with that and they do cope by restricting what they put in electronic writing. Judges and juries understand already what the status of such "deleted" records really is, but are you going to trust that a lawyer won't be able to make it appear more damning than it is? I'm not.
This de facto self-censorship of electronic discussions is what Judge Rosenbaum thinks is a bad thing that could be improved by making sure that "delete" means "delete."
It's unlikely to happen, but he has a point.
What's a sig?
After reading some replies, I have to say the Slashdotters don't Get It(TM). The judge is not saying that everyone should go back and recode. He is not saying that if you threaten someone then actually do harm to them, that after 6 months it would be inadmissible. What he is saying is the law should recognize that people are imperfect and that email is not formal correspondence. Email should be treated as a passing conversation. Sure I may threaten you in an email, but there is no way to tell from a printed word that I was joking. If I really did have a problem and the threat was serious, then there would be some sort of physical, real-world evidence of that to back it up. For example, maybe I'm stalking you, leaving threatening phone messages, egging your house, etc. The point is there will be ACTION to tie it all together. What the Judge is trying to stop is that I jokingly threaten you in an email, then years later that email is dug up out of the blue and used to charge me with attempted assault with no other evidence to back it up.
<parody>
In a related story, prominent Silicon Valley computer engineer John Q. Programmer has written an article that legal briefs, should be brief.
Mr. Programmer has written, "Too long have we be burdened by misnamed legal 'briefs.' Brief should mean brief." He went on to write, "I am proposing a technical solution to this problem, we should develop a data structure to hold all legal briefs in a data field of char[256]."
</parody>