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TechnologyDaily Mobile
Where There's Scandal, There's E-Mail
by Brittany R. Ballenstedt
In the wake of recent political and business scandals, perhaps e-mails and instant messages should begin by flashing a disclaimer that says, "Anything you type can and will be used against you in a court of law."
With the Internet age came new forms of communication. Letters turned into e-mails; telephone calls turned into instant messages; photographs became digital; and diaries turned into Web logs. But at the same time, a lack of sophistication arose over private and public communication online. Messages that some people might have thought to be personal and private suddenly have become fodder for news stories and evidence in legal proceedings.
"First of all, e-mail is never private," said Priscilla Emery, president of e-Nterprise Advisors, a content-management consultancy. "If you're going to do something illegal, the last thing you should do is communicate by e-mail. The question is, with all the different scandals out there, why are organizations still not getting it?"
Mark Foley, Michael Brown And More
The biggest scandal in recent weeks has been that of former Rep. Mark Foley, R-Fla., who sent suggestive e-mails and explicit instant messages to teenage, male House pages. Foley, who was thought to be a shoo-in for re-election in November, resigned Sept. 29, and both the FBI and House Ethics Committee since have launched investigations into his online conduct.
Yet veteran investigators argue that making a case out of his chats may be difficult. With Foley's help in 1996, Congress passed the Communications Decency Act, part of which prohibited explicit computer messages with children. But the Supreme Court overturned the statute for other reasons that it said violated the First Amendment right to free speech.
Emery argued that the Foley scandal highlights the failure of Congress to enforce an e-mail policy that details what constitutes inappropriate conduct. "If you have a policy and you don't enforce it, you're just as guilty as the person who actually sent [the e-mail]," she said.
Foley is not the first public official to be toppled, or at least tainted, by e-mail technology. E-mail certainly did not help former Federal Emergency Management Agency Director Michael Brown. After Hurricane Katrina in 2005, e-mails showed that Brown had obsessed over media coverage of FEMA and dismissed reports that floodwaters had breached levees in New Orleans.
In May, the Center For Public Integrity released 928 pages of documents revealing how FEMA became keenly sensitive to public criticism after Katrina hit. The e-mails revealed that Brown did not respond to e-mail and telephone messages, and often when he did respond, he dismissed reports and suggested that the situations were not as bad as believed.
E-mail also has been a key factor in the scandal surrounding disgraced lobbyist Jack Abramoff. In May, the Justice Department insisted that e-mails exchanged between Abramoff and General Services Administration Chief of Staff David Safavian provided relevant evidence of their "unsavory relationship."
In June, Safavian was convicted of using his position to do special favors for the lobbyist. Abramoff was sentenced to five years and 10 months in prison on March 29 after pleading guilty to fraud, tax evasion and conspiracy to bribe public officials.
Online indiscretions have wreaked professional havoc in political circles, too. In September, for instance, an aide to the Senate campaign of Rep. Benjamin Cardin, D-Md., was fired for blog entries that were considered racist.
Technology Killed The CEO
The corporate world is just as susceptible to embarrassment and legal woes from electronic missives, as recent events at Hewlett-Packard prove.
Company executives were summoned before Congress last month over revelations that it had hired private investigators to spy on board members, employees and journalists in order to pinpoint the source of an internal media leak. The company secretly accessed the telephone records of nine journalists covering the company using illegal tactics like "pretexting," or acquiring people's personal information under false premises.
E-mails were the first piece of evidence linking HP executive Mark Hurd to the scandal. They showed that earlier this year, Hurd had approved a "sting" operation aimed at a journalist covering the company.
Perhaps one of the most famous business scandals involving online communications is that of Enron, which in 2002 sent a group of e-mails that misled employees into believing the company's plummeting stock would rebound. Enron executives Kenneth Lay and Jeffrey Skilling were convicted early this year. Lay died in July, and Skilling faces sentencing Oct. 23.
The company e-mails became a major factor in Enron litigation. In 2003, the Federal Energy Regulatory Commission also created an electronic database with 1.6 million e-mails from Enron in an attempt to help the public better understand whether the energy company helped create and profit from an energy shortage in California during 2000 and 2001.
The 'E-Mail Oxymoron'
As both the government and corporate scandals indicate, e-mail and other forms of electronic communication have played a major role in litigation.
A 2004 survey by the American Management Association and ePolicy Institute found that 21 percent of employers had e-mails and instant messages subpoenaed for lawsuits or regulatory investigations. "Most alarming is the business community's failure to retain e-mail and IM according to written retention and deletion policies," institute Executive Director Nancy Flynn said.
More recently, the Association for Information and Image Management on Wednesday detailed the "e-mail oxymoron" in a study that says although e-mail and instant messages are critical in documenting organizational activities, managing the information often is an afterthought. The survey concluded that 35 percent of organizations have not implemented e-mail management strategies, while 41 percent have started systems but still have a long way to go to completion.
Association President John Mancini said the fact that 76 percent of organizations are far from having sound strategies endangers their credibility and future. He argued that courts are going to examine the process at which organizations manage their e-mail. "If the process has integrity, then that is going to reflect well on the organization," he said. "If it's completely devoid of process and you're trying to defend yourself, you're going to be in trouble."
The survey said that for most organizations, effective e-mail archiving often is considered to involve merely creating backup files. But Emery said archiving needs to define what should be saved and why, and it should establish the technology tools necessary to recover e-mails in the event of an investigation.
"Anything can be captured," Emery said. "A lot of people think that electronic messages are anonymous. They're not. You can guarantee that it's backed up, copied and there's an additional mirror of it somewhere. And it can be subpoenaed."
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