law of electronic mail - The impact of the White House case on you!, The

The court carefully indicated that its decision was not designed to impose significant new burden on the federal government not to preclude the use of a cost-effective technology. In reality, this decision could have a detrimental effect on federal government E-mail systems.

E-mail is often used as a convenient tool to communicate information. As with telephone calls, the parties may intend the communication to be private and not subject to scrutiny by others. Many certainly do not intend to create federal records though E-mail communications.

As a result of this court decision, some federal employees may elect to limit their use of the E-mail system or revert back to live, unrecorded conversations. Both outcomes would decrease their efficiency, reduce their response time to resolving problems, and increase the cost of government. This would be an unfortunate consequence.

IMPACT ON STATE GOVERNMENT

The Federal Records Act does not apply to state government. However, most states have enacted comparable state laws that would include electronic records within the definition of state government records. For this reason, the recommendations provided above for federal agencies should also be followed by state governments. Formal procedures should be established for electronic mail records and, when necessary, records retention procedures approved by the state archives.

IMPACT ON THE PRIVATE SECTOR

This decision may actually have no relevance to the private sector. Clearly, the Federal Records Act does not apply to private organizations. For purposes of evidence, the definition of records will include computer records since one may introduce computer records into evidence. In addition, computer records can also be subpoenaed by adverse parties during litigation.

Some regulations permit records to be kept in any form including computer form. At least one version of the records (computer, paper, microfilm, or other form) must be maintained for the retention period.

No known law affecting the private sector requires that electronic mail records must be kept in the first place. A large body of case law, however, suggests that records, once created, should be destroyed only under a records retention program. For this reason, indiscriminate destruction of even electronic mail records (or other records that the law does not require you to create) might cause legal problems.

Although the Armstrong case does not immediately impact the private sector, it does serve as an additional reminder--establish and document procedures related to the creation, management, and destruction of electronic mail records in the system. Records managers know the importance of records retention schedule and detailed procedures. This case merely reminds us that the time has come to include electronic records in our overall retention program.

1. The Iranian-Contra Affair was a "hot" issue at the time. Many groups were interested in the involvement of the White House Staff and the President. Some believed that the E-mail records could provide some answers as to who knew about the manner and who was responsible.