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Electronic mail, or e-mail, developed as part of the revolution in high-tech communications during the mid 1980s. Although statistics about the number of e-mail users is often difficult to compute, the total number of person-to-person e-mails delivered each day has been estimated at more than ten billion in North America and 16 billion worldwide. Faster and cheaper than traditional mail, this correspondence is commonly sent over office networks, through many national services, and across the Internet.

E-mail is less secure than traditional mail, even though federal law protects e-mail from unauthorized tampering and interception. Under the Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 Stat. 1848, third parties are forbidden to read private e-mail. However, a loophole in the ECPA that allows employers to read their workers' e-mail has proven especially controversial. It has provoked several lawsuits and has produced legislative and extralegal proposals to increase e-mail privacy.

Congress intended to increase privacy by passing the ECPA. Lawmakers took note of increasingly popular communications devices that were readily susceptible to eavesdropping—cellular telephones, pagers, satellite dishes, and e-mail. The law updated existing federal criminal codes in order to qualify these emerging technologies for constitutional protection under the Fourth Amendment. In the case of e-mail, Congress gave it most of the protection already accorded by law to traditional mail. Just as postal employees may not divulge information about private mail to third parties, neither may e-mail services. The law provides criminal and civil penalties for violators: In cases of third-party interception, it establishes fines of up to $5,000 and prison sentences of up to six months. In cases of industrial espionage—where privacy is invaded for purposes of commercial advantage, malicious destruction, or private commercial gain—it establishes fines of up to $250,000 and prison sentences of up to one year.

Commentators have noted that cases involving employers reading their employees' e-mails tend to favor the employers, especially where the employer owns the equipment that stores the e-mail. Many companies also provide written policies regarding the ownership of stored e-mail messages, indicating whether the employer considers stored e-mail to be the property of the employer.

E-mail raises additional issues of privacy in the context of communications between an attorney and client. Because communications between attorney and client must remain confidential, questions have arisen about whether sending unencrypted e-mail messages by attorneys to clients could pose ethical problems. In 1999, the American Bar Association issued its opinion that the mere use of unencrypted messages does not pose ethical problems.

E-mail raises some evidentiary problems as well. Commentators have noted that the origin of some e-mail messages might be difficult to authenticate, while messages might constitute Hearsay. Nevertheless, many courts have admitted e-mail messages into evidence. To protect against disclosure of private or sensitive information, some attorneys advise employers and employees to exercise caution with e-mail, as it can be subpoenaed. Some experts have advised users to delete their e-mail regularly, and even to avoid saving it in the first place. Still others advocate the use of encryption software, which scrambles messages and makes them unreadable without a digital password.

Further readings

"Harris, Micalyn S. 2002. "Is Email Privacy an Oxymoron? Meeting the Challenge of Formulating a Company Email Policy." Saint John's Journal of Legal Commentary 553.

"Joseph, Gregory P. 2003. "Internet and Email Evidence." ALI-ABA Course of Study.

Pearlstein, Mark W. and Jonathan D. Twombly. 2002. "Cell Phones, Email, and Confidential Communications: Protecting Your Client's Confidences." Boston Bar Journal 20.

References in periodicals archive ?
Info-Tech Research Group recommends that enterprises that use e-mail as a primary source of business documentation consider implementing an e-mail archiving solution as a best practice to provide a range of benefits regardless of whether or not companies ever face litigation.
E-mail Archiving is a "Win-Win" Proposition for Corporations
Just as in other enterprise applications markets, compliance is a major driver for the Cloud E-mail Archiving market.
A comprehensive e-mail archiving platform should also help the enterprise ensure compliance with regulations, reduce the size of e-mail databases (and therefore a shorter backup window and reduced downtime), improve performance and efficiency of the e-mail system, and reduce storage costs, leading to happier users, and happier administrators.
The report, Global E-mail Archiving Market 2010-2014, is based on an extensive research from inputs by industry experts, vendors and end-users.
Worldwide E-mail Archiving Revenue, 2011-2015 2011 $2,492 2012 $2,933 2013 $3,473 2014 $4,103 2015 $4,878 Source: The Radicati Group Inc.
1) Gartner, "Market Trends: E-mail Archiving Strong Growth Continues," by Sheila Childs and Alan Dayley, October 6, 2010
SoftScan claimed that its e-mail archiving offers full search facility, back-up, content integrity and improved e-mail management, with full configuration control maintained by administrators.
All of these features help with e-mail archiving issues by making PowerControls the equivalent of a data processing engine.
E-mail archiving systems have been around for more than a decade and started out primarily to manage mailboxes for storage management, but they have since expanded with functionality to protect mission-critical data and to retain data for compliance and legal requirements.
STORServer Inc, a provider of Business Continuity Appliances, announced on 13 October the release of its newest e-mail archiving solution, the STORServer Email Archiving Appliance, based on the Mimosa NearPoint dynamic content archiving solution.
The paper, "School Districts, Data Retention, and Federal eDiscovery Rules: The Case for a Full E-mail Archiving Solution Now," underscores the need for a complete e-mail archiving solution and provides recommendations to technology leaders for achieving compliance as well as case studies detailing successful approaches other districts have taken.