RIPS Law Librarian
vol. 21, no. 1
Message From The Chair
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
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
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
by Jean M. Wenger, Cook County Law
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.
Detective is an interactive, online tutorial for developing critical
assessment skills. The authors, Emma Worsfold and Debra Hiom of the
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.
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.
and Privacy Issues: Implications for the Law Firm and the Law School 
by Dennis S. Sears, Brigham Young University
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." 
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
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. 
Although initially heralded as a boon to the privacy rights of e-mail users/subscribers ,
three exceptions undermined most of the anticipated protections of this
Act: non-interstate systems (Electronic Communications Privacy Act of
101(a)(6)(C), 18 U.S.C. § 2510 (12)
(1994)), prior consent (§ 201, 18 U.S.C. § 2702(b)(3)) ,
and business use (§ 201, 18 U.S.C. § 2702(b)(5)) .
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. 
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 .
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 .
More recently, in Smyth v. Pillsbury Co. ,
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 . . . ." 
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." 
In granting the defendant's motion to dismiss, the
Court gave as one of its main reasons, the
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
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
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
property of the university because it owns
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. 
A few universities, apparently, have recognized the negative ramifications
these decisions may have on the university environment. 
The most important step that any entity can
take is to develop and disseminate an e-mail policy. 
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.
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
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.
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
Julia Turner Baumhart, The Employer's Right to Read Employee
E-mail: Protecting Property or Personal Prying, 8 Lab. Law. 923
Id., at 934-35.
Id., at 925-34.
Torres Hernandez, ECPA and Online Computer Privacy, 41 Fed. Comm. L.J.
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
at 39-41. Steven Winters, Comment, The New Privacy Interest: Electronic
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).
supra note 7, at 223-233. See also Patricia J. Pane, Epson Sued for
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.
F. Supp. 97 (E.D. Pa. 1996).
at 98, 99.
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,
James J. Cappel, Closing the E-mail Privacy Gap;
Employer Monitoring of Employee E-mail, J. Sys. Mgmt., Dec. 1993,
supra note 7, at 171 n.198; see also Online, Chronicle of Higher Education,
27, 1994, at A26.
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.