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U.S. K-12 Schools Must Comply With e-Discovery Rule
Lucas123 writes "K-12 school districts throughout the US have a daunting
IT homework assignment over the summer: Develop systems that ensure their electronic documents, email and instant messages are in compliance with new federal e-discovery regulations, much in the same way corporations have been preparing over the past year. The new Federal Rules of Civil Procedure (FRCP) are expected to be widely enforced by the end of 2007, according to a Computerworld story. '"A lack of preparation could prove dire for K-12 school districts, which oftentimes lack technical proficiency, funding and legal expertise," said Robert Ayers, technology coordinator for the Kingston, Pa.-based Luzerne Intermediate Unit 18 school district.'"
Printz v. United States was the case that struck down major portions of the Brady gun-control bill. Appellants argued, and the court agreed, that the law's requiring state employees to engage in extra work in order to compose and retain documentation in order to appease federal law violated both federalism and the concept of a unitary executive.
This seems pretty similar.
In other words, you hope that some judge sets a precedent as quickly as possible for encrypted records to not count as "accessible"? Or better yet, that the justice department gets handed the statistics to convince a clueless legislature to outlaw encryption? I mean, if they're going to require these records to be discoverable in the first place, why wouldn't they require by law that prosecutors and judges can actually read them?
My understanding is that when the rules first go into effect, individual judges will still have their own say as to whether the data policies involved in their cases meet the discovery standard of "accessible", and encryption would be a big grey area. If a big case comes up where a company scrupulously retained all their emails, but the suspicious officers in question were all encrypting with their own personal keys, which the company policy conveniently ignored, what would stop the judge from ruling that a retention policy does not keep its data "accessible" if it doesn't actively prevent personal encryption? Or if they didn't feel it was within their power, and it let the next Ken Lay get off scot-free, wouldn't that be a good reason for Congress to start working on laws against civilian encryption? Even if such laws were limited only to data passing through corporate servers, to or from corporate personnel, it would still be a blow to efforts against corporate espionage.
Don't get me wrong: I'm not the least bit anti-encryption. It's just that I've always been a little grateful that encryption had not made its way into the mainstream yet. The post-9/11 political climate is definitely not the time for it to try, because as far as I know there's nothing constitutional to prevent Congress from killing it if they've got a reason.