United States: The Paper It´s Written On

In a final-season episode of Seinfeld, time’s arrow was reversed and events occurred backwards. As the characters went back in history, there was an exchange between Jerry and George about e-mail. George’s response: "What’s e-mail?"

Not long ago, most people had never even heard of e-mail. E-mail arrived on the scene just as the mimeograph machine was being retired and VCRs became popular; after touch-tone phones, but before most people carried cellular phones; after Federal Express became "FedEx," but before we all used the Web. People faxed before they e-mailed, but not much before.

E-mail was a new kind of communication, and it took some getting used to. For many, it was the first time they were expected to use a keyboard. There was a good deal of insecurity and a fair amount of "lawyers-don’t-type" silliness. Once over that, prospective users - lawyers included - were left with good questions about e-mail: When and how do you use it? Was it formal like a letter or informal like a phone call? Did spelling matter? Grammar? Punctuation? To whom do you send it, and from whom do you get it?

We learned the most by making mistakes. Sometimes we sent the whole firm an e-mail that had been meant for one or two friends. If we were lucky, we first received someone else’s unintentional mass e-mail and learned from his embarrassment. We also learned that it is hard to communicate humor - especially sarcasm - via e-mail. More than one new user has sent a follow-up e-mail explaining that "It was supposed to be funny! Don’t you guys have a sense of humor?"

More ominously, people learned that e-mail can be "signed" by a person who did not originate it. It can be forwarded without the original writer’s knowing about it. It can be saved without anyone knowing it and even after people try to delete it.

And the substance of e-mail knows no bounds. It can be defamatory. It can amount to a solicitation. It can constitute false advertising. It can pass along false tips about a stock. It can be part of a Ponzi scheme. It can be junk.

Although the form is new, e-mail content can be as old as communication itself. It was perhaps inevitable that this new medium would find its way into the courts, where it would shape trials and make law.

We already have seen striking examples of the impact of e-mail. In the Iran-Contra scandal, the Special Prosecutor, Lawrence Walsh, obtained valuable information from email. Messages passed between Colonel North and his superiors were said to contradict the statements that public officials were making to Congress. More recently, the President of the United States stood trial in the Senate for alleged perjury in a case that was based in part on the e-mail communications of Monica Lewinsky. In fact, the report of Special Prosecutor Kenneth Starr contains at least 43 references to that e-mail trail.

Why has the use of e-mail exploded? Why is e-mail so incendiary? Why do people say things in e-mail that they would never put down on paper? The answer to all three questions may be the same: because e-mail is so fast and so easy. It is tempting to compose an e-mail message and send it before reflecting on it; we press the "send" button much more quickly than we sign our name. People who always revise their typewritten correspondence before mailing it think nothing of dashing off an e-mail message.

This reflects our thinking about e-mail. We do not consider it to be as formal as a letter that we sign in ink with our own hand or even a memorandum that we initial. We do not usually intend that our e-mail will be read by anyone other than the recipient, so it feels more private and more intimate than even casual conversation in the hallway. A message that will appear on a personal computer screen seems to be a more direct communication than words on a piece of paper. When we delete an e-mail message from our screen, we think that it is gone forever; we forget that it might remain forever stored in a server.

Adding to the attraction, e-mail is likely to receive a much faster response than a letter will. It all but eliminates phone tag. It can communicate even lengthy or complicated messages with the detail of a report and the ease of a phone call. As a result, people use it more often and less cautiously.

When we forget how persistent e-mail is and how easily it can be replicated and distributed, we can inadvertently help the litigation enemy. E-mail is valuable not only in asserting substantive legal rights and defenses, but in cross-examining witnesses as well. In the Microsoft antitrust case, Netscape’s claim that it was being coerced by Microsoft at a crucial meeting was dealt a serious blow by Netscape’s own e-mail message that read, "Good to see you again today - we should talk more often." In a similar vein, Monica Lewinsky’s initial denials were undercut by her own contemporaneous e-mails.

The lesson: If you are trying to prove that someone made false statements, compare e-mail messages that were sent at the same time to different people. Perhaps your target will have mixed fact and fiction as well.

Writers create this ammunition for the other side because e-mail is so easy to use and the writers never consider that the message may be found. In the Iran-Contra investigation, Colonel North supposedly uttered his famous line - "Oh, you found that one" - after he thought he had deleted the most damaging messages. In the same way, someone attempted to delete some of Monica Lewinsky’s e-mail correspondence regarding the President.

For those who thought that they could electronically shred their e-mail messages, this is the dark side to computer backup systems. Of course, in office computer systems, it is important to have back-up copies of documents; otherwise, if files are somehow lost, work may be gone forever. A whole industry exists to provide this emergency back-up. And anyone who has been through a computer disaster appreciates the need for regular, system-wide back-ups.

But the practice may needlessly preserve that which can lawfully be thrown away. It is therefore good practice to have and use a comprehensive document retention policy that includes e-mail.

For all these reasons, e-mail should be a priority in discovery. Among your consultants, include a skilled computer technician who can get access to the hard drives of the other side. Are you representing a plaintiff in a sexual harassment or race discrimination case? There may be a lot to look for in the employer’s e-mail, where a key executive may have expressed himself a little too bluntly, thinking that he was just being "one of the boys." Both sides will want to see what the key individuals have been e-mailing to friends, colleagues, and family and whether they used the same kind of language, told the same kind of jokes, and expressed the same views that the plaintiff now claims to be offensive.

Employees will not be happy to have their office e-mail files read. They may even claim that you have violated their right to privacy. But they will be wrong: Most courts have ruled that there is no reasonable expectation of privacy in email sent over an employer’s system and that the employer may read it all. See, e.g., Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996); cf. Restuccia v. Burk Tech., Inc., 5 Mass. L. Rptr. 712 (1996) (summary judgment denied to an employer, because its reading of employee e-mail could have violated a state privacy statute if the employees had not been told specifically that management might access their e-mail).

And access to employee e-mail may be an important right for employers to exercise. In fact, even if an employer does not know what is in its employees’ e-mail, it might still face liability for what the employees are writing–or even forwarding-to each other. An employee-plaintiff suing for employment discrimination and claiming a hostile work environment may have received some off-color e-mail jokes sent by the office comedian. It is not hard to imagine Exhibit "A" at trial being an e-mail that was not written by anyone at the company, but was a communication in bad taste that was merely forwarded around.

One of the key benefits of electronic communication was to be its equalizing effect. Because there are virtually no entry barriers to its use, e-mail - unlike mass media - would not be an exclusive tool of the wealthy. My e-mail message looks pretty much like one sent by you, Bill Clinton, Bill Gates, or anyone else.

But the universality of e-mail creates problems for the organizations whose employees generate it. Everyone can use e-mail to state "facts" - whether or not the writer knows anything about those "facts." As a result, when a corporation’s e-mail files are produced in litigation, some may have been written by a person who knows nothing about the topic at issue, but who has insisted on sharing his ignorant views. That can be embarrassing. In a product liability context, for instance, someone who knows nothing about how the product was designed or how it works can create a problem for the company by baselessly "observing" that "we are putting profits ahead of the safety of our customers." The trial lawyer’s job will be to exclude the irrelevant and uninformed statement by proving that the client’s employee is an idiot. This can be harder than it sounds, and in any event it inevitably leads to an unenviable litigation posture.

As our case law has addressed issues arising out of electronic communication, our courts have struggled to categorize e-mail. The law is so rooted in the concept of stare decisis that it has real problems dealing with something that is without precedent. Indeed, the law tries desperately to avoid recognizing that something is genuinely novel. Instead, lawyers and judges try to shoehorn new concepts into old categories.

The theory is that we know the rules that apply to X, so if Y equals X, the same rules must apply to Y. This leads to law-by-simile. If e-mail is like a paper document, then we know how to handle it-a certain set of rules applies. If it is like an oral communication, then we still know how to handle it - other rules apply. Only if it is neither do we have to do the unthinkable - find a brand new set of rules.

A wonderful example of such law-by-simile was a recent suit brought by Intel. Intel fired an employee who then began sending mass e-mail messages to Intel employees containing such gems as "Never trust Intel’s human resources [HR] representatives and/or HR attorneys." Intel prevented some of the messages from being delivered, but the former employee circumvented Intel’s computer defenses. Intel sued to enjoin the former employee from sending any more emails to Intel employees.

How should the court rule? Insofar as e-mail is speech, well-settled First Amendment principles would not let the court prevent the former employee from "speaking" even offensive statements. (Were they offensive? See for yourself: http://wwwfaceintel.com.) Similarly, if the court categorized e-mail as paperless "writing," the court still would draw on the existing law that makes it difficult to enjoin publication.

Intel’s lawyers no doubt knew that if e-mails were viewed as "speech" - written or otherwise - Intel probably would fail to obtain an injunction. So they argued that the e-mails were a "trespass" onto Intel property and that its employees’ e-mail addresses were "confidential and proprietary information." They argued that the bulk e-mail was "taxing Intel’s internal systems," that it constituted an "unsolicited intrusion on the company’s proprietary computer equipment," and that the defendant’s conduct should be viewed as the equivalent of picketing inside the company fence. The court agreed and enjoined the former employee from sending any further e-mail to Intel employees. Not surprisingly, one of the leading advocates for the open use of computer communications, the Electronic Frontier Foundation, criticized this decision as a "prohibition of speech."

E-mail can create evidentiary issues as well. In Monotype Corp., PLC v. International Typeface Corp., 43 F.3d 443 (9th Cir. 1994), for example, the Ninth Circuit examined whether a company’s e-mail should be admitted into evidence as a business record under Federal Rule of Evidence 803(6). At issue were derogatory statements about a superior that had been found in the electronic message of a nonparty subordinate. Rather than debate what e-mail is, the court focused on what e-mail is not. The court first observed that record keeping by computer satisfied the business record requirements. E-mail, on the other hand, was a much less "systematic" business activity. For that reason, the court held that e-mail was not a business record under the rule. Five years-and a lifetime of new technology-have passed since that decision, however, and it is fair to ask whether the pervasive use of e-mail might lead to a different result today.

And e-mail also creates substantive law. Consider junk email for example.

Given how easy it is to use and send widely, e-mail is a boon to businesses that use mass mailings. While a bulk mail sender pays postage for the privilege of delivering junk to your door, the bulk e-mailer pays next to nothing. Instead, the costs of distributing the junk are borne by the Internet service provider and, when you download it, by you. As a result, junk e-mail is easy, cheap, and widely disseminated. Most people delete junk e-mail without reading it. But junk e-mail is sometimes harder to kill than that.

One entrepreneur, Cyber Promotions, was sued by two leading Internet service providers, America Online and CompuServe, in cases that illustrate the difficulty of applying existing law to this new medium. In CompuServe v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997), Cyber was sued for sending mass e-mail messages in which the "return address" included the word "CompuServe" even though CompuServe had nothing to do with them. This subterfuge made the recipient of the mass-mailing think that the sender was CompuServe or a subscriber to CompuServe. When the readers of the mass mailing realized that it was an advertisement, they complained to CornpuServe-understandably (but wrongly) presuming that CompuServe was responsible.

The e-mail that was "returned" to CompuServe played havoc with its system. The District Court entered an injunction against Cyber, finding that CompuServe was likely to prevail on its claim that its service mark was being infringed when Cyber used it as a phony return address.

A year later, another dispute arose between the same litigants. Now unable to use CompuServe’s name in its e-mail messages, Cyber began sending e-mail to large numbers of CompuServe’s subscribers. Again the subscribers complained, but this time there was no allegation that Cyber was concealing its true identity. CompuServe needed another basis to stop Cyber from bombarding its customers.

Creatively, CompuServe’s attorneys invoked the arcane doctrine of trespass to chattel. CompuServe argued, and the court agreed, that Cyber’s delivery of e-mail to CompuServe subscribers was an unauthorized intrusion into the CompuServe system. Cyber was therefore enjoined from sending mass e-mail to CompuServe’s subscribers.

Cyber was persistent. Not content with making CompuServe subscribers miserable, it turned to the more popular America Online service-now the corporate parent of CompuServe. To Cyber’s chagrin, however, AOL succeeded in electronically blocking Cyber’s e-mail en masse. In a remarkable display of chutzpah, Cyber went to court and asked for an injunction against AOL. Cyber claimed that its free speech rights were being violated by AOL’s refusal to allow it to send mass e-mails to its subscribers. But Cyber struck out. Because AOL is not the government and because the First Amendment does not apply to such a private system, the court threw out Cyber’s claims. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996).

CompuServe’s invocation of trespass to chattel is not the only example of new technology looking to archaic law for protection. In Lamb Group, Inc. v. Guru Communications, Inc., National Law Journal, Dec. 11, 1995, at B-1 (Fla. Cir. Ct., Dade County, Nov. 22, 1995), a Web page publisher who claimed that a competitor was using portions of its page filed suit for trover, a common law cause of action used to recover the value of personal chattel wrongfully used by others. But such suits may truly be a thing of the past today. Congress recently passed, and the President signed into law, the Digital Millennium Copyright Act of 1998, which should eliminate the need for such litigation-by-anachronism in the future.

The Computer Fraud and Abuse Act, 18 U.S.C. 2707, is primarily a criminal statute that provides a better solution to spam. And the statute has already been used to this end. In America Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D.Va. 1998), for example, another mass-e-mailer, IMS, was sued for using software to "harvest" e-mail addresses from America Online members and then spamming them. AOL tried to use software blockers, but the mass-e-mailer evaded them with electronic sleight of hand. For good measure, the e-mailer included "aol.com" in the e-mail return address, just as Cyber had done with CompuServe. Relying in part on the statute, the court issued an injunction prohibiting those practices.

E-mail has also become an issue in libel litigation. The standard legal questions become more complex when the alleged defamation takes place in cyberspace. For example, which state’s law will apply? The sender’s? The recipient’s? The place where the Internet service provider’s server is located? Different states have different standards.

Factor in another country - e-mail easily crosses national borders--and it becomes even more complicated. Only the United States has a First Amendment. Libel trials are different in other countries. And choice of law questions will determine key substantive issues as well - such as whether a statement is "capable of defamatory meaning." Calling someone a communist may be viewed differently in China than it is in Texas.

Until recently, there were no clear answers; as a result, the whole Internet communications industry was at risk. Victims of alleged defamation were suing both the e-mailer and the e-mailer’s Internet service provider on the theory that the service provider was responsible as the publisher. And at least one court accepted that argument and entered summary judgment against the service provider, Prodigy. Stratton Oakmont Inc. v. Prodigy Servs. Co., 24 Media L. Rep. (BNA) 1126 (N.Y. Sup. Ct. Dec. 11, 1995). In a development that must be gratifying to defenders of the First Amendment and service providers alike, however, an intermediate appellate court in New York has recently disavowed the Stratton Oakmont ruling. Lunney v. Prodigy Servs. Co., 250 A.D.2d 230, 683 N.Y.S.2d 557 (2d Dep’t 1998).

And even before the appellate decision in Lunney, Congress had come to the rescue by enacting the Telecommunications Reform Act of 1996. Among the thousands of pages in this massive bill, 47 U.S.C. 230 essentially declares that a service provider is not liable for the contents of the conimunications it transmits and is not a "publisher" of defamatory information.

Blumenthal v. Drudge, 992 F Supp. 44 (D.D.C. 1998), is perhaps the first widely publicized application of section 230. Cyber-journalist Matt Drudge, until then a largely unknown gossip collector, e-mailed "The Drudge Report" to America Online where subscribers could read it. He included an insulting item about White House advisor Sidney Blumenthal that even Drudge promptly admitted was not correct. Blumenthal sued both Drudge and AOL, but the court dismissed the claims against AOL because of section 230. "AOL was nothing more than a provider of an interactive computer service on which the Drudge Report was carried," the court noted, "and Congress has said quite clearly that such a provider she not be treated as a ‘publisher or speaker’ and therefore may not be held liable in tort." Id. at 50. For an even more sympathetic plaintiff’s case that was also dismissed under section 230, see Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), cert denied, 118 S. Ct. 2341 (1998).

Even jurisdictional issues are raised by e-mail. For example, in Cody v. Ward, 954 F. Supp. 43 (D. Conn. 1997), e-mail was used to establish jurisdiction over a geographically distant writer. Having e-mailed a Connecticut resident to extol the virtues of a stock, the writer, a California resident, was involuntarily haled into court across the continent. As another court put it, while modem technology has made nationwide commercial transactions simpler and more feasible, even for small businesses, it must broaden correspondingly the permissible scope of jurisdiction exercisable by the courts." Edias Software International v. Basis International, 947 F. Supp. 413, 420 (D. Ariz. 1996). See also Resuscitation Technologies, Inc. v. Continental Health Care Corp., 65 U.S.L.W. 2694 (S.D. Ind. Mar. 24, 1997). Although the courts are still sorting out how the "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310 (1945), applies in cyberspace, it is clear that sending email into a jurisdiction might be enough to create "presence" there.

Judges are wrestling with the proper metaphor to apply, but the ultimate solution may be to recognize that email is new and different. It can carry messages that are as serious as those that paper documents have borne for centuries, but not every e-mail message is the functional equivalent of a writing, and not every e-mail message carries the gravity that writing does. A court should not unthinkingly apply the same evidentiary standards to e-mail that it applies to paper documents.

Perhaps at this primal stage, the best we can do is to admit that e-mail is unique, that context matters when email is involved, and that it is unjust to pretend otherwise in a vain effort to achieve a foolish consistency in the law. Whether this requires new laws or rules of evidence or whether common law can develop this distinction remains to be seen. For now, it is exciting enough to be on the brink of a brave new world of communication and its impact on litigation.

Copyright 1999 American Bar Association. All rights reserved.

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