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09 Jan 2011

This Blog Post Is Confidential Internet

Every day we get mail with text like this at the bottom:

This E-mail and any of its attachments may contain [big company] proprietary information, which is privileged, confidential, or subject to copyright belonging to [big company]. This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immediately and permanently delete the original and any copy of this E-mail and any printout.

Why do people put those tags on their mail? And do they mean anything? I can't answer the first question, but the answer to the second is definitely No.

A notice like this is basically an attempt to make a contract: they send you the message and you agree to keep it confidential. But, of course, you haven't agreed to anything simply by receiving a message. A valid contract also requires Consideration, that each party gets something of value from the agreement. There's no value from just sending someone a message. (If you disagree, please send me the $100 you owe me for your copy of this informative and entertaining blog post, since that's what I claim it's worth.)

One might reasonably ask, if these notices are totally bogus, where did they come from in the first place? As is often the case, there is a tiny kernel of truth crushed beneath the load of nonsense. Back in the last millenium, there were things called fax machines, which lawyers used (and still use) a lot. They're constantly sending documents back and forth both to their allies and to their opponents, a task for which a fax machine is way quicker than old fashioned paper mail. Fax machines have speed dial buttons, typically set to the numbers of the parties to whom one sends faxes most often like, say, the opposing lawyers in a big case. Those speed dial buttons are pretty small, and it's a pain to update the labels to say which button is who, so it's easy to hit the wrong button and send a document to someone who you really REALLY didn't want to send it to. Oops.

As a matter of legal ethics, one lawyer isn't supposed to take advantage of accidental mistakes made by another, so if this happens between two lawyers, the recipient is supposed to destroy the accidental fax and tell the sender. Lawyers being lawyers, someone put a note on his cover sheet form reminding other lawyers about this rule, and it spread, cargo cult style.

I suppose that if one lawyer e-mails documents to another by mistake, the recipient is supposed to do something similar, but for the other 99% of us who aren't lawyers, it's just so much hot air. It is certainly polite to refrain from spreading around material that someone has sent you by mistake, but it has been my experience that legal-sounding threats are not the most effective way to encourage people to be nice. So don't do that.

On the other hand, it is easy to demonstrate the inantity of such notices, like this:

Someone: Sends you e-mail with a boilerplate confidentiality threat
You: Write back and say, sorry, I don't accept your confidentiality agreement.
Someone: Oh, that, just ignore it (with the same confidentiality threat.)
You: If you can't delete the notice, you clearly don't have the authoritity to waive it.
Someone: what?


Note: This is not legal advice, nor is it a contract. If it were a contract, it would have an exchange of value and affirmative agreement by both parties. If it were legal advice, it would be written by a lawyer and would have a bill attached.

posted at: 11:00 :: permanent link to this entry :: 2 comments
posted at: 11:00 :: permanent link to this entry :: 2 comments

comments...        (Jump to the end to add your own comment)

Thanks John, well said, and bookmarked.

When people I know working with/for various community organisations began queuing up to obey this mad meme about five years ago, I persisted in appending the following to replies .. which mostly, eventually, did the trick.

cheers, Ian

--- If you have received this message by mistake, it must be my mistake for sending it to the wrong address; silly me eh? Common law holds that any communication I send you is, failing prior confidentiality agreements by you, yours to communicate to whomever you wish. This message is in plain text so cannot contain any virus, worm or clue, except that language itself is a virus, so a clue to cans of worms. No guarantees can be given of any of it making the slightest sense. Any conclusions you jump to are yours to keep. No change is given. Long, officious disclaimers make me appear important, if officious. Caveat Bloggor! Life is risky and not nohow permanent anyway <&^}=

(by Ian Smith 28 Jan 2011 05:19)

Michael Foord ( used to have a signature that went

"READ CAREFULLY. By accepting and reading this email you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer."

(by George V. Reilly 16 Jul 2011 16:26)

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