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An Analysis Of Email Disclaimers
akintayo writes "Recently more amd more organisations have required email sent from their accounts to contain an attached disclaimer. This disclaimer is supposed to describe the recipient's rights to 'use' that email. This slate article analyzes the legality and impact of one such disclaimer, and finds it somewhat lacking."
about this here. And it also has a collection of stupid disclaimers ..
There's already precedent for this in the postal system, at least here in the United States.
If you receive something unsolicited in the US Mail (which includes something addressed to you by accident, but not addressed to someone else and simply left in the wrong mailbox), you are free to do with it as you wish. The sender cannot compel you to obey any license agreement or follow any restrictions they might wish to place on its use, within the bounds of the law. (That is, you can't go out and beat someone up with a billy club someone sends you in the mail, because that would otherwise violate the law, but you're free to use it as a billy club even if the company who sent it to you says it's a sex toy for cows.)
There was a great deal of discussion about this back when DigitalConvergence (remember them?) was sending unsolicited CueCats to people and then suing them for taking them apart and hacking them.
Some info on that situation:
http://www.beau.lib.la.us/~jmorris/linux/cuecat/
http://air-soldier.com/~cuecat/
http://www.xmission.com/~rebling/pub/cuecat.html
http://www.logorrhea.com/cuecat/mirrors.html
More on Google; search for "CueCat."
p
In Korea, long hair is for old people!
Here in Texas whenever you send an email to a state or local government official, it automatically constitutes a public record, regardless of any disclaimers attached, and is subject to the state's open records availablility and record retention laws.
The original purpose of the law was to nix an old scam. Shady companies would ship merchandise to people at random, and them send them a bill.
Originally, people had the legal obligation to return the goods or to pay for them. The companies would make it so hard to return the goods that it was easier to just pay the bill.
In response, Congress came up with a reasonable law that just made the problem go away. Amazing.
plus-good, double-plus-good
I asked my lawyer friend about this, and he said the only legal purpose that these disclaimers can really serve is to prevent the sender from accidentally waiving any rights they may hold. For example, attorney client privilege is a very big deal to lawyers. They must be able to communicate in secret with their client. If an email is misdirected and falls into the wrong hands, any information could not be admitted into court as if it were publicly disclosed. Legally, attorney client privilege is still in effect. Of course the accidental recipient would still see it and there wouldn't be much you could do about that, so if something is really confidential, encrypt it. The same thing could apply to trade secrets or any other form of private communication. However, it would be very difficult to take any action against an accidental recipient, regardless of what your disclaimer said, unless you could prove that they acted with malicious intent after receiving the email.
As one who negotiates NDAs for a major corporation, I have advised clients that these "disclaimers" are inappropriate in negotiation. You can't dictate the terms of a confidentiality agreement in an e-mail sig, but only in an agreement duly signed by both parties. Even click-and-accept agreements like EULAs are not recognized in some countries, and so we have to insist on signed paper in those cases. (eg: http://articles.corporate.findlaw.com/articles/fil e/00051/005095/title/Subject/topic/Intellectual%20 Property%20Law_Licensing/filename/intellectualprop ertylaw_1_239 )
We do not use disclaimers like this on e-mails, although attorneys advise that their messages should be considered atty-client privilege if marked confidential. And in those cases, they should never be forwarded outside the company.
Point is if you're really serious about electronic data getting into the wrong hands, don't use unencrypted e-mail. If you're concerned about improper use by the intended recipient, don't send the info without a non-disclosure agreement.