E-mail, Voice Mail, and Instant Messaging: A legal perspective

Information Management Journal, Jan/Feb 2004 by Montana, John C

An organization that uses messaging faces a legal landscape that urges, if not demands, a rational policy for managing messaging data

Since the early 1990s, e-mail has become ubiquitous world-wide. Many businesses are dependent on it, and a significant percentage of all private individuals in the developed world are equally dependent on it as a means - often a primary means -of communication with others. More recently, instant messaging (IM) has achieved a similar status. In many environments, business and personal, it is an important communication tool. Lurking on the sidelines is still another widely used tool, voice messaging.

These tools pose formidable challenges in many respects. From a business and management perspective, their utility -often very high - is counterbalanced by their unstructured, inherently difficult-to-manage nature and the sheer volume of data that is transmitted and accumulated using them. From a legal perspective, their rapid acceptance, combined with the equally rapid changes in the technologies of which they are a part, makes it difficult for the often slow-moving legal world to keep pace with them.

This confluence of factors poses several issues for the organization that uses these technologies extensively:

* Storage of large volumes of e-mail, voice mail, and IM imposes significant costs on an organization in terms of infrastructure and equipment, manpower, and other resources.

* The difficulties of managing millions - or even billions - of informal data objects, created with little or no attention to formal structuring or indexing, make systematic management and recovery of them challenging and expensive.

* The e-mail so stored is subject to legal process, requiring searches that may prove difficult and expensive.

From a legal perspective, another group of issues arises:

* Are data objects created using these technologies "records"?

* If so, must they be formally managed?

* What retention period is appropriate for them?

* Are all these technologies the same legally, or do they fall into different classes?

These business and legal issues collectively pose a very formidable conundrum for any business or other large organization.

What: Exactly Are E-mail, Voice Mail, and IM Legally?

From a management perspective, e-mail, voice mail, and IM (hereafter collectively called "messaging") as "non-records" or legal non-entities would be the most convenient situation. An organization would therefore be free to manage or not manage them as it saw fit. Included in this approach would presumably be the option to establish an arbitrary retention period suited to the convenience and budget of the organization.

A good deal of law impacts messaging. Much of it is indirect in that it does not specifically refer to the technologies themselves. Nonetheless, it does have a direct impact on the way messaging must be managed. The ultimate sweep of that law is perhaps best characterized by an analysis of the United Nations Commission on International Trade (UNICTRAL) Model Law on Electronic Commerce, which serves as the basis for many national laws governing the topic.

According to UNICTRAL, "'Data message' means information generated, sent, received, or stored by electronic, optical, or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex, or telecopy."

Consideration of this brief provision reveals that its scope is broad indeed: Messaging of all sorts, regardless of the technology, is a "data message" within the meaning of this law.

UNICTRAL also describes several legal attributes of a data message:

* "Information shall not be denied legal effect, validity, or enforceability solely on the grounds that it is in the form of a data message."

* "Information shall not be denied legal effect, validity, or enforceability solely on the grounds that it is not contained in the data message purporting to give rise to such legal effect, but is merely referred to in that data message."

* "Where the law requires information to be presented or retained in its original form, that requirement is met by a data message if: (a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as a data message or otherwise; and (b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented."

* "[The preceding] paragraph applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being in writing."

* "In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to deny the admissibility of a data message in evidence: (a) on the sole ground that it is a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form."