Love Doesn't Conquer All - in Cyberspace

Posted on February 10, 2009 by Patricia Hutter

Ah, l’amour. With Valentine’s Day upon us, our thoughts turn to hearts, flowers, chocolate and….texting? When George Bernard Shaw said, “The perfect love affair is one which is conducted entirely by post,” one doubts that Mr. Shaw could have ever imagined that the “post” would evolve to allow electronic, nearly instantaneous, communication about affairs of the heart, nor is it likely he would consider the dangers of electronic communication romantic. 

One couple’s use of text messages to communicate during their affair led to public humiliation, fines and jail time. Tresa Baldas, writing in the National Law Journal, reports that on Tuesday, January 7, Christine Beatty - the former top aide to Detroit’s ex-mayor Kwame Kilpatrick - was sentenced to 120 days in jail and ordered to pay $100,000 in restitution for her role in a text-messaging scandal that put her boss - and alleged lover - behind bars. Mayor Kilpatrick’s administration had been accused of retaliation against police officers who discovered Ms. Beatty’s and Mayor Kilpatrick’s affair. Text messages between the two were admitted into evidence and proved that Kilpatrick and Beatty had lied about their affair and that they sought to mislead the jury regarding the retaliatory actions taken against the police officers. The trial cost the City of Detroit $8.4 million, and both Beatty and Kilpatrick were ultimately charged with felonies including perjury and obstruction of justice. Their text messages were published in the Detroit Free Press.

 

Text messaging is discoverable, as lamentably learned late by the amorous couple. If it’s something you wouldn’t want your mother to see - or wouldn’t want published in the Detroit Free Press or anywhere else - think twice before texting it.   As Earl Warren said, “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Don’t be the one whose secrets in the area of “l’amour” are front page news, fodder for the water cooler gossip groupies, or worse - a source of humiliation and liability.

Tags: , , , , , , , , ,

Obama To Give Up His Blackberry. Should You?

Posted on December 2, 2008 by John Schaak

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.

Tags: , , , , , ,