IP: E-Mail Privacy [ time to use PGP etc]

[Dave Farber <farber@cis.upenn.edu>]

E-MAIL Privacy Discussed by Virginia Supreme Court Justice Kinser


http://www.timesnews.net/index.cgi?CONTEXT=story&BISKIT=8845614634882&id=431
5&category=5




Virginia Supreme Court justice says courts need to catch up on e-mail
privacy issues 
 
Justice Cynthia Kinser was the keynote speaker at a bar association
luncheon in Norton Friday. Terry Ketron 
by MIKE STILL 




NORTON -- Attorney-client privilege becomes problematic when e-mail
communication is involved, state Supreme Court Justice Cynthia Kinser told
an audience of Southwest Virginia attorneys recently.


Kinser, the keynote speaker for the Wise County and Norton Bar
Associations' Law Day luncheon Friday, said laughingly she was invited to
speak about law and technology by association secretary and Wise County
Circuit Court Clerk J. Jack Kennedy but could not match "the guru'' -- a
reference to Kennedy's technology efforts in his office.


"(E-mail) is a wonderful development for attorneys, another weapon in the
arsenal for better representation of your clients,'' Kinser told the
association. But she also cautioned that Internet communications can be
easily intercepted under a variety of conditions, and that poses problems
for confidential attorney-client communications.


The American court system has not kept up with advances in communications
technology as it relates to the attorney-client relationship, Kinser noted.
Although the New York City police began wiretaps on lawyers' telegraph
messages as long ago as the 1890s, the U.S. Supreme Court did not recognize
a reasonable expectation of privacy in a telephone conversation until 1967
in Katz vs. United States.


"That just goes to show that, as courts, we are behind,'' Kinser said.


In researching her speech, Kinser said she and her clerk could find no
clear-cut case law on reasonable expectation of privacy of e-mail
communications between attorney and client, although a 1995 military court
martial decision contained the aside that the defendant had more of an
expectation than if he was using a cordless telephone or multiple-line phone.


And a 1997 court case noted that cellular telephones and e-mail are not
very secure, Kinser said, although the expectation of privacy still is
there. But a case involving a child pornographer and an electronic chat
room found no such expectation for obvious reasons, she added.


While Virginia's courts have not addressed the privacy issue in depth,
Kinser said attorneys and clients may improve their position in case a
confidential communication is revealed by adding software security
measures, adding confidentiality disclaimers to e-mail messages, or using
on-line services such as America Online that are not open to the general
public like the Internet. Those steps would help demonstrate intent and
expectation of privacy if a message was brought into a court case.


"I just hope that you will look at what you're doing, be aware of potential
hazards, and take measures to protect that confidentiality,'' Kinser said.


Norton attorney Elsey Harris said a variety of recent incidents have shown
that technological developments in intercepting and identifying e-mail
messages would remove any expectation of privacy for the attorney and client.


"The bottom line is ... that's why we, the courts, have to keep up with
technology,'' Kinser said.


"The bottom line is, if you're going to communicate with your client, don't
do it with e-mail,'' Wise County Circuit Court Judge J. Robert Stump said.


"If you don't take steps, you'll be hampered in using the latest
technology,'' Kinser said.




Published May 2, 1998 


v
J. Jack Kennedy, Jr., Esq.                   Objects in this mirror
Clerk of the Circuit Court                    may be closer to your
for Wise County & City of Norton             future than they appear!
P.O. Box 1248
Wise, Virginia 24293-1248
http://www.courtbar.org