By Joshua L. Colburn. Full text here.
E-mail has become the cheap and reliable replacement for many forms of business and personal communication. Despite a lack of any significant advances in privacy laws or software, lawyers have surrendered their once vocal privacy concerns in favor of efficient communication. In an effort to minimize any remaining privacy concerns, e-mail privacy disclaimers have become as common as junk mail. Having no foundation in statutory or case law, however, e-mail privacy disclaimers have become nothing more than a self-perpetuating legal phenomenon. This Note analyzes the possible motivations for the continued use of e-mail privacy disclaimers and concludes that such disclaimers are wholly unenforceable.
In order to address continuing e-mail privacy concerns, this Note identifies several best practices for maximizing the effectiveness of e-mail disclaimers from a pragmatic standpoint. Such methods include manually placing disclaimers at the beginning of e-mail messages. In addition, the Note presents e-mail encryption as an effective and enforceable replacement for e-mail privacy disclaimers. Not only does encryption reasonably guarantee the confidentiality of an e-mail message, but it also provides the sender with valuable information about delivery.