I found this in
Confidentiality Guidance Note for Holders of Functions and Offices in IPCC Working Group I
As has become customary in the private sector, we also recommend for IPCC-related email traffic to add to the signature of your email a note that declares the content of the mail to be confidential and intended only for the addressee. One example which is currently being used by the WGI TSU is:
This e-mail including any attachments is confidential and may be privileged. It is intended solely for the addressee. If you have received it by mistake, please notify the sender by e-mail and delete this message from your system. Any unauthorised use or dissemination of this e-mail in whole or in part is strictly prohibited.
It’s evidently not prohibited by the wiretap act. Can anyone tell me what law I would be violating if somehow an IPCC email arrived in my in box and I disseminated it?
Amazingly enough, the regulations which apply to marine vhf radio limit what you may “hear” even though for some operations you are required to maintain a “watch” on channel 16 (safety and hailing) and for commercial operators, channel 13.
This means that everyone that is “monitoring” channel 16 will hear the same things and may hear Captain Bob tell Captain Dallas to switch to channel 18 where he then tells him where the fish are today. By regulation, If you are not Captain Dallas you are forbidden to act on this overheard information.
I would bet that very few people have been prosecuted for taking actions not related to safety based on overheard marine communications.
I suspect, but do not know for sure, that the legal entreaty discussed above implies the same thing.
j ferguson–
Honestly, I suspect there is no American law prohibiting someone from posting an IPCC communication if it magically appears in their in box. I know it’s illegal to publish classified information, but IPCC stuff isn’t classified.
I know it’s illegal to intercept email– any email– in transmission. If I emailed you my grocery list, it would be illegal for someone to intercept the transmission, but this has nothing to do with IPCC or declarations of confidentiality.
But I strongly suspect the declaration that email is confidential is just puffery.
lucia:
If there is monetary value associated with the proprietary information, then it would fall under the Trade Secret Act.
From the Wiki:
I don’t think that applies here though.
This situation is (to me) another example of European secrecy rules being applied to and distorting science.
Carrick–
Quite honestly, if someone hacks into the IPCC’s fora, those non-disclosures aren’t going to do any good.
I can’t help wondering: If the CRU got hacked and they don’t yet know how it happened, why would anyone imagine the IPCC’s fora wouldn’t get hacked? Everything in one place is going to be a massive temptation for people who like ‘phishing’ or doing all sorts of stuff. Plus, the authorized users are going to be located all over the place, including universities, where security training may be uneven.
Obviously, if those documents get hacked, little security messages at the bottom aren’t going to stop anyone from posting them.
These addenda are common. I was on a school council recently, and every communication from the government department had such a message.
I think it’s only legal effect arises if there are court proceedings and the opposition argues that the sending org did not specify that it did not permit the email to be disseminated. They can now say, no we made that very clear.
Nick, I’ll agree with you on this one. This is standard way things get done in Geneva. Back doors, pointless disclaimers, untraceable communication, over fluffed rhetoric, the whole nine yards.
Certainly makes one contemplate the wisdom of how this organization was set up and is being run. Indeed it is almost perfectly 180° from the direction that science should follow.
(Then again who ever said the IPCC was about actual science?)
Nick–
I agree they are common. That doesn’t necessarily give them any legal effect.
We used to have those on all our company emails, but removed them after awhile when we realized that they were (mostly) useless and tended to look both pretentious and forbidding. From my experience they are quite common in the private sector, though I think their effect (if any) is as a deterrent.
I was under the impression that adding statements like that as a default actually negates any protective value because it demonstrates lack of conscious effort or discrimination. In any event, it constitutes an attempt to force a unilateral contract, something that just isn’t allowed. (This is why license agreements that require you to accept the terms before being able to read the agreement aren’t valid.)
‘..but removed them after awhile when we realized that they…. tended to look both pretentious and forbidding’. – Zeke
I know some 🙁 who would use it for those very reasons 🙂
AKA: “Burn After Reading”?
I’d have thought that if somebody wanted to protect their email from publication, then a copyright notice would be the most sensible way. Then the power of the DMCA can be used to force take downs etc.
I suspect that most civilised countries have laws that protect personal privacy and these makes it a crime to disclose information where that it is reasonable to assume the authour wanted to keep it private (hence the note at the end of emails).
Don’t think I’d want it any other way.
Hi
The point of the message is to make clear that accidental misdirection of the email is not intended and does not extinguish the ordinary rights one has to keep such communication privileged or private.
Privilege only applies in limited cases – attorney – client; doctor patient.
It also establishes a potential contractual / negligence action if the sender suffers damage as a result of your misuse of the contents of the email. The notice would give you fair warning that the sender considers the contents need to be kept confidential and if you then break that confidentiality it may expose you to a damages claim. You could hardly say you thought it was intended as public information.
However, these are general law matters and they can be over-ridden by statute / laws that are law in your jurisdiction.
I don’t think they are a waste of space as what’s a few 0101’s between friends?
Note your freedom of speech right does not permit you to breach confidential information agreement or knowingly publish private info – eg mobile phone photos of “stars” is protected despite no such notice applying, because they were obviously privately held. This notice seeks to do the same in case of accidental breach of that privacy.
Your only protection is if enough people simultaneously break the privacy – you can’t (afford to) sue everyone!
When the frequencies used by wireless handsets were fairly low, it was possible to listen to them using scanners. It was also perfectly legal. But it’s always been illegal to listen to someone’s cell phone transmission. There was a big flap some years back when someone ‘accidentally’ overheard a call from Newt Gingrich and made the conversation public. With digital cell phones that sort of thing is much harder to do. I’m still reluctant to use a wireless handset when I’m giving out critical information like a credit card number for an order.
jaydee (
Copyright gives some protection. But it’s utterly ineffective for the sorts of things the IPCC likely wants to protect. If there is a “big story”, the fair use clause blows a huge hole in copyright permitting a huge amount of quoting to support a story.
Also, it’s sometimes not clear who owns the copyright. Just because something is on the IPCC servers doesn’t automatically mean they own the sole copyright. If government agency “X” employee “Y” posted something in the course of his employment, it’s quite likely that government agency “X” is a joint-owner of the copyright no matter what the IPCC says and no matter what employee “Y” says– and for that matter, possibly no matter what government agency X says!
This means no matter what message US government agency employees puts in the footer of an email, they can’t magically create any sort of legal prohibition to distribution that doesn’t exist as a matter of law.
Also, my impression is that the American public and American law generally frown on US government agency employees systematically making false claims about laws in a manner that would tend to mislead the public about the law. If employees of government agencies or government entities start slapping claims that make it appear publishing their emails is illegal when it is not, or worse, if the government agency starts actually advising employees to make these misleading claims, that’s going to look really bad to voters, tax payers, citizens etc. The government making an inaccurate intimidating claim is a bit more serious than a private entity making an inaccurate intimidating claim.
I recognize this verbiage because it’s similar to usual appendices I see on lawyers’ emails, which looks something like this:
CONFIDENTIALITY NOTICE: This electronic transmission may contain attorney work-product or information protected under the attorney-client privilege, both of which are protected from disclosure under the Freedom of Information Act, 5 USC 552…
CONFIDENTIALITY NOTICE: The information contained in this email and any accompanying attachments constitute confidential information which may be legally privileged. If you are not the intended recipient of this information, any disclosure, copying, distribution or taking any action in reliance on this information is strictly prohibited. Transmission of this message in no way waives any and all privilege. If you received this email in error, promptly delete this message and attachments from your computer system and notify me immediately by return email…
…they don’t cite any legal authority for this “prohibition” except the authority of the sender.
The privileges they cite (such as attorney work product and attorney-client privilege) are significant when you get to court – you can’t use discovery procedures to force a lawyer to cough up his private communications with his client. Also, if the lawyer takes “reasonable steps” to keep them confidential, and you get hold of them anyway, you can’t introduce the statements in court. I don’t know any law that says you can’t read them yourself or share them with other people (provided those people aren’t a jury).
P.S. – The appendix itself doesn’t render the e-mail privileged – at best it can be used as a “reasonable step” the writer took to keep the thing from being disclosed (so he can argue he didn’t waive the privilege by sending the e-mail to the wrong person).
This was discussed recently by Orin Kerr on the legal blog “The Volokh Conspiracy.” He concludes with:
MJW–
Yep. That’s the same article you’d get to if you click the words “not prohibited by the wiretap act. ” in my post. 🙂
Sorry. I didn’t click on that particular link.
DeWitt:
In the old days we also used to get cross-talk on long distance phone lines. About the most interesting conversation I ever heard was in 1978 … somebody was advising somebody else to buy gold and go in deep. That was just a few months before the big surge in prices.
MJW your link didn’t work… I suspect this is the one you meant.
MJW–
That’s ok. Now that you put it there again. other people will click. It’s a great article. 🙂
We look forwards to seeing the e-mail you’ve received!
If you still want to use a disclaimer, you can always use this one:
IMPORTANT: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humour or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorised (either explicitly or implicitly) and constitutes an irritating social faux pas.
Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or no grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the kelpie next door is living on borrowed time, let me tell you. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft.
However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets. If you have received this email in error, please add some nutmeg and egg whites, whisk and place in a warm oven for 40 minutes.
I work for a “covered entity” under HIPAA regulations. The confidentiality statement that is included in my e-mails is required per our organization’s policy and procedures.
The statement is present to basically cover our butts if we inadvertently send protected information to the wrong recipient.
Given the organization I work for is also a government regulatory agency, certain communications can, by state law, be considered “internal deliberations†which are exempt from disclosure by FOIA. Regardless, when it comes to sensitive issues, most of us recognize it’s best to “deliberate†by paper, phone, or in person because an electronic message can (but not always will) live forever.
Alternatives:
“This e-mail including any attachments is confidential and may be privileged. It is intended solely for the addressee. If you have received it by mistake, please return it unopened to the sender.”
or (EULA version)
“This e-mail including any attachments is confidential and may be privileged. It is intended solely for the addressee. By opening this e-mail, you have implicitly agreed to this confidentiality requirement. If you do not agree to this requirement, then do not read this e-mail.”
It’s interesting.
If I give you information which ‘is’ confidential, or in circumstances in which you ought to have known that the information was confidential, then you may not breach that confidentiality.
But here, I have not intentionally given you information, you have come by it by accident. That might be sufficient of itself to distinguish the situation from the intentional case.
Can a statement at the foot of the e-mail have the same legal effect as an intentional imparting of information in confidence?
What if the recipient didn’t read the bottom of the page? Could they then be said to have breached confidentiality when the confidential nature of such information was unknown?
And how would you prove that someone had seen and read and understood the notice? This would raise similar considerations as those pertaining to the old ‘ticket’ cases involving statements limiting liability for damage to passengers and goods and so forth. Was the information sufficiently clear or prominent so that it could be considered to have been brought properly to the attention of the unintended recipient of the e-mail.
Again, what of the situation where a recipient (perhaps even automatically) passed the message on without even reading it. The information has certainly been passed to someone, but the circumstances would appear to be well outside the requirement for intentionality.
Typical lawyer stuff isn’t it? More questions than answers! But you can see that it is not a cut and dried matter I hope
If I give you information which ‘is’ confidential, or in circumstances in which you ought to have known that the information was confidential, then you may not breach that confidentiality…Can a statement at the foot of the e-mail have the same legal effect as an intentional imparting of information in confidence?
The thing is, no one has got the power to unilaterally force you to keep things private, even if they say, “This is in the strictest confidence. I really mean it!” Not with an e-mail appendix or anything else. There are cases where the law imposes that duty (e.g., you’re a lawyer with a professional responsibility to keep your clients’ communcations private, or you work with private health-care info). There are cases where agree to it contractually (as part of your employment) and that can be enforced. But the point of Lucia’s post is – this doesn’t seem to be one of those cases.
P.S. – The less charitable take is that they’re just bluffing, trying to intimidate the reader into hiding what he got (and that seems to be Lucia’s concern). The more charitable (which Nick suggested) is that they’re trying to avoid waiving any privileges that may apply, in the event of litigation (“You can’t make us give you this; it’s private, and look here, we tried to keep it private.”)
In terms of email with that message on it, it doesn’t mean anything. There is no penalty to disclose it. These types of communications are paid for public money. As an FOI officer I know the ruling on this.
Email disclaimers are not binding for the simple reason that the inadvertent recipient did not agree to any of the responsibilities supposedly imposed by the sender and there is no general statutory duty.
Unless the message contains information the public dissemination of which would obviously be harmful (e.g., credit card numbers, positive STD results or a receipt for an online purchase of Our Choice: A Plan to Solve the Climate Crisis by Al Gore) there really is not much of a legal duty to keep an inadvertent email confidential.
The following disclaimer language is about as legally binding as the one proposed for the IPCC Working group:
As pete m (Comment #84029) and Joseph W. (Comment #84041) observe:
For details see: The Attorney-Client Privilege and the Amended Federal Discovery Rules,by Carl G. Roberts
Individuals or companies seeking to license intellectual property may enter into a “Confidentiality Non-Disclosure Agreement” where communications do not constitute “public” disclosure.
These are critically important in filing patents where “public” disclosure can result in loss of the patent.
However, I can’t think of any IPCC work needing such protection.
IPCC provides for“press”
I would argue that Lucia at “The Blackboard” definitely count as “press” and “publication”
IPCC is touting increased “transparency”
At the same time:
So Lucia, you will have to formally “publish” your uncertainty analyses to get them included in AR5.
PS Some lawyers forget to turn off the attachment when sending Public comments
Technically this is an In Terrorem clause,
In this case an unenforceable threat to illicit (or prevent) behavior which simply is used to intimidate with no actual legal weight.
Re: jeez (Oct 29 15:14),
illicit should be elicit ?