The New York Times has reported that President-elect Barack Obama will likely give up his Blackberry when he takes office in January. According to the Times, Mr. Obama - like legions of other professionals - is all but addicted to his Blackberry. Yet he is giving his up. So should you be thinking about trading yours in too? Going Luddite, if you will?
You may be stretching your thumbs right now, getting ready to send a lengthy and exasperated comment from your Blackberry. So I'll just start out by saying the short answer is no, you don't need to give up your Blackberry; and no one will try to take it from you. However, the Times article about Mr. Obama and his reluctant parting of ways with his Blackberry reminds us that we all need to be wary of how we use ours.
As the Times article explains, Mr. Obama will likely give up his Blackberry for two reasons. The first is security; anything can be hacked. The second is "the Presidential Records Act, which puts his correspondence in the official record and ultimately up for public review, and the threat of subpoenas." So, '[f]or all the perquisites and power afforded the president, the chief executive of the United States is essentially deprived by law and by culture of some of the very tools that other chief executives depend on to survive and to thrive."
Now, we everyday professionals - who really are that dependent upon our Blackberrys - do not have to worry about the Presidential Records Act subjecting all of our emails to public scrutiny. That is true. However, the data on everyone's Blackberry is subject to discovery in civil litigation and regulatory and criminal investigations. So many seem to forget this, or just don't think about it. These days, the smoking guns that win and lose cases, or make them for the government, are usually found in electronic correspondence. Email is just such a casual means of communicating; particularly when sent on a Blackberry. Most folks aren't thinking about the fact that they are creating a record when they fire off an email. And if you think lawyers can't get the information you have on your Blackberry, well, "yes we can." So if you're going to continue using your Blackberry, and you know you are, the tip for the day is to be smart about it. Some of the best advice I received in law school was from my Evidence professor, Daniel Blinka. He said, whenever you send a letter to another party, think about whether you'd want to see that letter appear at trial with a sticker on it that says "Exhibit A." In today's high-tech world, I would take that a step further and say you should imagine that exhibit sticker on everything you write. And that goes double for your emails, since that's where the good lawyers will look first.