Even Cory Doctorow, the digital rights activist and online champion of all things weird, includes a lengthy legal warning at the bottom of his emails. He uses the space to "require" recipients to free him from their companies' "non-negotiated agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies."
Doctorow's disclaimer is legally toothless, but no more so than all the banal conventional versions taking up space in your inbox. These days, even the most innocuous messages—"Sure, squash at 6 sounds great"—sent from corporate email accounts are larded with dense legalese that is as universally unread as the health advisories on beer bottles. But the ominous warnings that you must obliterate, incinerate, and forget any email not intended for you don't actually mean anything, according to legal experts.
"You have no obligation to obey the disclaimer if you decide to read a misdirected email, send it to your friends, or send it to a Wired reporter," says Susan Lyon, a privacy and data security attorney for Perkins Coie. "You don't have to worry about that."
The IRS requires that those involved in giving tax advice include certain legal disclaimers, but most others are empty threats. So why do companies bother? The sad answer is that the verbiage relieves managers' anxieties about how easily secrets can slip through the digital firewall, even though it does nothing to stop such leaks. But since everyone's doing it, everyone will continue doing it.
"If you're trying to protect confidentiality, including a warning probably won't help," says Laurence Pulgram, an IP and trademark attorney with the Silicon Valley-focused firm Fenwick & West. "But you could be damned if you don't." In a trade secrets case, for instance, the absence of a notice could be used to argue that the sender didn't care about keeping the content under wraps.
"The other guy could say, it doesn't even have the boilerplate confidentiality notice, and the standard is you put it on everything," Pulgram says.
So that gets us where we are today: Including a disclaimer means nothing, but not including it might mean something. Please tell your inbox we said sorry.
