Vol. 21, No. 1 (Fall 1998)

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RIPS Law Librarian
vol. 21, no. 1
Fall 1998  

Message From The Chair

Celeste Feather   

The Annual Meeting in Anaheim proved to be a momentous one for RIPS, and I'm sorry that all of you couldn't be there to experience the excitement.  I am very excited about the energy I felt, the interest in RIPS activities that was expressed, and especially the willingness to volunteer and get involved.  Kory Staheli, the outgoing RIPS Chair at the Anaheim meeting, is featured in a smiling photograph on page 26 of the September issue of AALL Spectrum at the RIPS business meeting.  The photo was taken by our own Marc Silverman, the current RIPS Patron Services committee chair.

Later in this issue you will find articles about the new RIPS listserv, the history behind the new RIPS mascot and our SIS colors (that should keep you reading!), and reports from the first RIPS roundtable discussions held at an Annual Meeting. There also will be a report from the Program Committee about the programs proposed and selected for the 1999 Annual Meeting in Washington, D.C.

Our new RIPS Web page also is full of helpful information and current activities.  If you haven't seen it yet, take a look at it at http://www.aallnet.org/sis/ripssis/index.htm.  Bobbie Studwell, the Web Page Committee chair, is always looking for volunteers to help develop the page and keep the information there current.  

The committee structure put into place by former RIPS chairs Duane Strojny and Kory Staheli is working well.  All committees met in Anaheim and have plans for activities during the year.  You'll find a list of committees and chairs in this issue, and please do not hesitate to contact a committee chair and let him or her know of your interest in participating in their activities. 

My plans for the year include making sure that every RIPS member feels connected and a part of the greater whole.  I think our new listserv will go a long way toward accomplishing that goal. Volunteer opportunities abound, and new ideas are welcome.  I also feel that it is time to have a long- term strategic plan for the SIS.  Long-range planning done with a great deal of care and consideration will pay off handsomely for us in the long run.  I plan to put together a special task force to work on the development of a strategic plan for RIPS, and I would like to arrange an all day meeting with a facilitator in Washington next summer on Friday before the Annual Meeting begins.  If anyone is interested in working as a part of this task force, please let me know soon.

AALL Past President Judy Meadows has asked RIPS to take responsibility along with other groups such as CRIV and the Professional Development Committee to address the issues raised by a special symposium held last April on disintermediation. For background on this topic, see the article in the June, 1998 issue of the AALL Spectrum, pp.8-10. The RIPS Executive Board is discussing ways for our SIS to focus on the suggestions that came from this symposium, and we probably will seek members for a task force to oversee the project.

I am negotiating meeting times with other SIS leaders for next years Annual Meeting in order to avoid conflicts as much as possible.  Along with regular programs, RIPS will be co-sponsoring a forum with the Academic SIS at the Washington meeting at which top officials from Westlaw and Lexis will be presenting their company plans for the future.  SIS events next year will be scattered throughout the conference, and not concentrated on Wednesday as they were in Anaheim.  In addition to our business meeting, we will continue to schedule RIPS committee meetings and roundtable discussions.  Next July may seem far away, but the plans for the 1999 meeting certainly are in full swing. 

I hope to hear from a lot of you as the year progresses.  Please feel free to open dialogue with me on whatever issues come to mind.  The SIS needs your input in order to be strong and successful.  

Internet Ideas
by Jean M. Wenger, Cook County Law Library  

Its inevitable.  The use of the Internet as a legal research tool is burgeoning.  However, critical web site assessment and searching savvy often do not keep pace with the wonder and enthusiasm for this powerful technological phenomenon.  The following sites offer suggestions for fine tuning evaluative skills and assistance in using a popular search engine.

Internet Detective  is an interactive, online tutorial for developing critical assessment skills.  The authors, Emma Worsfold and Debra Hiom of the Institute for Learning and Research Technology, University of Bristol, and Marianne Peereboom of the National Library of the Netherlands, completed the first edition in May 1998.  Produced by the DESIRE Project with funding from the European Union,  Internet Detective is free but requires registration.  The tutorial takes approximately 1-2 hours to complete but the user can interrupt work anytime and the registration keeps track of where the user stopped work.  

Critical web site assessment and searching savvy often do not keep pace with the wonder and enthusiasm. The authors focus on the following criteria: content, form, and process, to evaluate a web site.  The tutorial provides methods for detecting whether a site meets the above criteria and what clues to look for in making that determination.

Content criteria include validity, accuracy, authority, uniqueness, substantiveness, completeness, and coverage of a site.  Form criteria include a sites navigational features and user support.  The processes of a site focus on integrity issues.  Site integrity is measured by the information provided by the author, the webmaster's control of site stability, and system/server integrity from the system administrator.

Sample web sites are critiqued online and give the user concrete examples of how to utilize the criteria in their own evaluations.  Online quizzes also have the researcher evaluate an online  journal, a mailing list, and a subject site.

LawRunner uses "pre-defined intelligent agents in conjunction with the world's leading Web index, AltaVista" to assist the researcher search particular jurisdictions or sites that have a particular domain name suffix.  LawRunner has a "Global Index" with links for 238 jurisdictions at .  After selecting a country, a search will limit hits to sites that contain the country's two-letter code, i.e., ***.de (for Germany).  In other words, hits are to sites physically located in that particular country.

The LawRunner's "American State Index" similarly limits searches to state government sites when a state is selected from the list. As the Internet continues to mature, expect to see the development of more analytical tools like the Internet Detective, and more sophisticated search templates like LawRunner that will help make the WWW a more efficient and effective research tool.   

E-mail: Property and Privacy Issues: Implications for the Law Firm and the Law School [1]
by Dennis S. Sears, Brigham Young University  

Introduction

One of the most remarkable means of communication developed in recent years is electronic mail (e-mail).  It is quick, inexpensive, and facilitates communication among subscribers.  Use has increased because of the cost-savings in terms of both time and money and so has the expectations of users.  While many users still use e-mail for short, one-on-one communications, an increasing number of users are transmitting far more complex forms of communications, i.e., attaching diagrams, documents, plans, etc.

The legal profession has not remained unaffected by these advances in communication.  Attorneys can now communicate with clients, each other, and the courts quickly and inexpensively.  E-mail, however, is not without its problems.  Although postal mail and telephone conversations are subject to stringent restrictions with regards to privacy, issues of both privacy of e-mail, as well as, the ownership of transmitted documents should be of concern to both law firms and law schools alike.

E-mail and the Bar
Presently, the Bar is split over the used of unencrypted e-mail.  While Iowa, North Carolina, and South Carolina have stated that lawyers "may violate their ethical duties if they use unencrypted e-mail to converse with a client about confidential matters . . . without first discussing the risks of disclosure with, and obtaining consent from, the client," Arizona and Illinois "approved a lawyers use of e-mail . . . when conversing with clients." [2]  Illinois relied, in part, on the language of 18 U.S.C. § 2517(4) (1994): "No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character."  Neither stance may adequately address the problems of the present state of the law.

Electronic Communications Privacy Act of 1986

Prior to the passage of the Electronic Communications Privacy Act of 1986 (ECPA) no federal law protected e-mail.  The ECPA amended and updated the Omnibus Crime Control and Safe Streets Act of 1968 to reflect advances in technology, specifically with the purpose of protecting the privacy of electronic communications, such a e-mail. [3]  Although initially heralded as a boon to the privacy rights of e-mail users/subscribers [4], three exceptions undermined most of the anticipated protections of this Act: non-interstate systems (Electronic Communications Privacy Act of 1986, § 101(a)(6)(C), 18 U.S.C. § 2510 (12) (1994)), prior consent (§ 201, 18 U.S.C. § 2702(b)(3)) [5], and business use (§ 201, 18 U.S.C. § 2702(b)(5)) [6].

Despite the express purpose of the ECPA, the courts have not been supportive of a privacy right with regards to users, even when privacy has been explicitly guaranteed, for instance, in the employment arena by employers.  The courts have given two major justifications for refusing to find a privacy right based on one or more of the three above-mentioned exceptions.  First, any users expectations to privacy is extinguished by the fact that messages are duplicated by a provider or systems operator for purposes of providing a back-up in the event of a system failure. [7]  Second, no privacy is afforded those who use corporate-owned or corporate-sponsored systems.  This second justification is property-based, i.e., all material on the system is corporate property [8].

Caselaw
Two cases indicate the extent to which the courts are willing to go to find no privacy right.  In the case of Shoars v. Epson America, Inc., Alana Shoars, a company e-mail administrator, inadvertently saw copies of employees e-mail messages in her supervisors office.  When she confronted him about the messages, she was told to "mind her own business." She was terminated shortly afterward for "gross misconduct and insubordination" when her supervisor claimed to have viewed a message from her to a fellow employee enquiring about establishing a private e-mail account to which he would not have  access.  In sustaining the demurrer of the defendant corporation, the Superior Court of California stated that Shoars had no expectation of privacy and that she had no statutory cause of action under state law [9].

More recently, in Smyth v. Pillsbury Co. [10], the plaintiff, an at-will employee, was discharged by the defendant-corporation for "inappropriate and unprofessional comments [made] over the defendant's e-mail system . . . ." [11]  His discharge occurred despite repeated assurances by the corporation to its employees that "e-mail communications would remain confidential and privileged [and] that e-mail communications could not be intercepted and used by defendant against its employees as grounds for termination or reprimand." [12]  In granting the defendant's motion to dismiss, the Court gave as one of its main reasons, the lack of a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communication would not be intercepted by management.  Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any      reasonable expectation of privacy was lost. [13]

Ramifications/Recommendations
One concern for the practitioner is whether or not confidentiality is breached by use of e-mail in communicating with clients and other attorneys since such communications have not been considered private. 

A second concern, to both practitioners and law professors, is the ownership of the e-mail.  For instance, if an attorney communicates with a law professor who has been associated with a particular case because of that law professors expertise, the cases indicate that any work product sent through a university-owned system would become the property of the university because it owns the system.

Given the repeated findings by the courts that the use of e-mail negates any reasonable expectation of privacy, a number of different entities, including universities, have taken steps to address the issue, including the drafting of policies specifically providing for e-mail privacy. [14]  A few universities, apparently, have recognized the negative ramifications these decisions may have on the university environment. [15]

The most important step that any entity can take is to develop and disseminate an e-mail policy. [16]  A policy may not guarantee user privacy, as has been demonstrated by the case law.  However, the lack of such a policy provides no protection to users.  At the very least, a formal policy puts providers and users alike on notice that there are limits to any expectation of privacy.  

[1]  The impetus for this article was a presentation/panel discussion entitled Privacy Law.  This program was part of the Annual Meeting of the Western Pacific (WESTPAC) Chapter held in Sacramento, CA on October 24, 1997.
[2]  John P. Ratnaswamy, Using Electronic Mail to Communicate With Clients, The Bencher, July/August 1997, at 5; see also Wendy R. Leibowitz, Communication in the E-mail Era: Deciphering the Risks and Fears, Nat'l L.J., Aug. 4, 1997, at B9.
[3]  S. Rep. No. 541, at 14 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3568.  ("This term [electronic communication] also includes electronic mail, digitized transmissions, and video teleconferencing.")
[4]  Julia Turner Baumhart, The Employer's Right to Read Employee E-mail: Protecting Property or Personal Prying, 8 Lab. Law. 923 (1992).
[5] Id., at 934-35.
[6] Id., at 925-34.
[7] Ruel Torres Hernandez, ECPA and Online Computer Privacy, 41 Fed. Comm. L.J. 17, 24-27 (1988); Laurie Thomas Lee, Watch Your E-Mail!  Employee E-Mail Monitoring and Privacy Law in the Age of the "Electronic Sweatshop," 28 J. Marshall L. Rev. 139, 147-49 (1994).
[8] Id. at 39-41.  Steven Winters, Comment, The New Privacy Interest: Electronic Mail in the Workplace, 8 High Tech. L.J. 197, 201, 209 (1993); David Neil King, Note, Privacy Issues in the Private-Sector Workplace: Protection from Electronic Surveillance and the Emerging "Privacy Gap," 67 S. Cal L. Rev. 441, 469 (1994).
[9] Winters, supra note 7, at 223-233.  See also Patricia J. Pane, Epson Sued for Invasion of Privacy, InfoWorld, Aug. 13, 1990, at 3; Epson E-mail: Private or Company Information, InfoWorld, Oct. 22, 1990, at 66; Yvonne Lee, Judge Dismisses Some E-Mail Privacy Claims Against Epson, InfoWorld, Jan. 21, 1991, at 85.
[10] 914 F. Supp. 97 (E.D. Pa. 1996).
[11] Id. at 98, 99.
[12] Id. at 98.
[13] Id. at 101.
[14] Kristi Coale, Northern Telecom sees, hears no "evil," InfoWorld, Feb. 17, 1992, at 50; Doug van Kirk, IS Managers Balance Privacy Rights and Risks; Proactive Companies are Establishing Clear Guidelines and Informing Employees, InfoWorld, Nov. 29, 1993, at 65; James J. Cappel, Closing the E-mail Privacy Gap; Employer Monitoring of Employee E-mail, J. Sys. Mgmt., Dec. 1993, at 6.
[15] Lee, supra note 7, at 171 n.198; see also Online, Chronicle of Higher Education, Apr. 27, 1994, at A26.
[16] Maureen Molloy, NW User Panel Takes Stand on E-mail Privacy, Network World, Nov. 5, 1990, at 4; Baumhart, supra note 4, at 935, 941, 947; Cappel, supra note 10, at 6.