Friday, December 01, 2006

Communication retention rules: Could they affect speakers?


A new AP story by Christopher S. Ruganear, "Companies face new rules on keeping data", Dec 1, 2006, at this location, and also displayed on AOL News, raises concerns. The Supreme Court had approved these rules last April and they go into effect today, Dec.1. Employers must keep track of emails and IM's, even from laptops, blackberries, cell phones, etc. in an organizable way for legal discovery purposes should they face litigation. The rules would probibit "virtual shredding."

Yet, I recall in late September 2001, a meeting at work in which my employer's lawyers were advising ordinary individual contributor associates not to keep unnecessary emails or communications lying around!

The concern with respect to COPA would seem to come up if a company were prosecuted (or sued under the civil provisions) under it, and had to produce the information in the discovery process. But this raises another question, what about discovery requirements for very small speakers who do not have employees but who may have indirect commercial potential?

Remember, in the COPA trial, the "free entry" idea was always indirectly under the table as a potential issue, as some speakers do not have the economies of scale for clumsy credit-card verification schemes or to "protect" the public in a philosophical way.

The content labeling systems, as presented here in earlier blog entries and as mentioned by the ACLU in its closing argument exhibits, could require speakers to have much more automated systems of content management, and record keeping.

So far, industry has little handle on how to handle these potential issues for small speakers.

One concern could be that speakers could be forced to use their email associated with their domain accounts rather than personal emails, and might not be allowed to automatically delete spoofed-sender bounceback emails sent to them by viruses and spam (which can overwhelm mailboxes). However, the AP story emphasized that the government's concern seems to be with emails and IM's generated by employees.

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