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Automatic and thus meaningless

By Scott Bradner

In their zeal to protect their company's secrets, some corporate managers are mostly succeeding in making their companies look dumb while avoiding doing anything real.

The following trailer showed up recently on one of the IETF public mailing lists: (Name changed to protect the silly.)

"Information contained in this E-MAIL being proprietary to MyCo is 'privileged' and 'confidential' and intended for use only by the individual or entity to which it is addressed. You are notified that any use, copying or dissemination of the information contained in the E-MAIL in any manner whatsoever is strictly prohibited."

When I asked, semi-politely, why the sender added a trailer that claimed that email contained proprietary, privileged and confidential information to a message that was sent to a public list the response was "It's company policy" and that all email sent by anyone in the company gets the trailer added automatically by the mail system. I was told in another case that company policy said that an employee could not get a private email address elsewhere (like HotMail) to use when working with public mail lists to avoid the trailers.

To me, this means that the company lawyers are not doing their job. It means that there has been a triumph of form over substance. The company lawyers have substituted an automatic, and mostly invisible, technical solution to a real process problem. In doing so they have left the problem unsolved.

Clearly the use of the trailer in the cited case is meaningless at best. You cannot send mail to a public mailing list and somehow put a legal responsibility on the readers of that list to not disseminate the message, nor can you keep the mailing list operator from archiving the messages that are sent to the list. Both of these would be violations of the above trailer.

The first time I saw this type of trailer was on mail addressed to me from a lawyer. I can see the possible utility of such a trailer in that situation, but even there I'm not sure that I would be bound by its requirements if the letter was unsolicited and I had no previous relationship with the lawyer.

It can be a real problem when confidential email gets sent to the wrong person and it's reasonable to try and protect oneself in case this happens. But it seems to me that overuse and in particular, automatic use in clearly inappropriate cases, reduces the legal strength of any admonition. So at least there should be a way to let the system know that you are sending mail in a public forum that avoids appending the trailer.

I would worry about other aspects of any company that does this type of automatic trailer addition. If the company lawyers decided to not think about the details of the issues in this case, what else have they skipped over?

disclaimer: Harvard Law School does not, to my knowledge, offer classes in skipping - so the above observation is my own non-legal one.