Internet Law Explores the Esoterica and Risks of Using Email for Formal Communications

The Internet Law Subcommittee had a very well-attended meeting that included a lot of heat and light. Hank started the meeting with a description of a general problem--that there are numerous technological barriers to using email for formal communications--and launching a discussion of how to deal with the problem.

The list of technical problems included:

• Filtering technologies that deal with spyware, adware, and spam
• Blacklists of certain mailservers
• Companies that require outgoing spam filters (recipients or recipients domains must be on a "whitelist")
• Anti-virus software
• Proposed changes
• Firewalls
• Technology that ads "signatures" or "footers" to outgoing email messages that state the email can't form a contract

The group then explored the impact of these technological barriers in the following contexts:

• Contract formation
• Notices of termination, default, etc.
• Court filings
• Ethical obligations to inform clients of certain events
• Communications with co-counsel

Some of the solutions (a start on a list of best practices) the group identified included:

• contract clauses that email is never an acceptable form of notice
• contract clauses that override the presumptions in UETA and require acknowledgement of emails (but what does "acknowledgement mean? Does my "Out of Office" message constitute acknowledgement?)
• use of technologies (like Web Bugs) to track receipt

The group also pondered several other issues:

• Is UETA already outdated on this subject?
• Can we describe these issues by creating a continuum of communciations that are more or less suitable to email as the means of transmission?
• How significantly business people rely on email for all of their communications and how they are very reluctant to do anything in paper form (who has envelopes anymore?)

This discussion will likely blossom into a program idea.