Although it should hardly be considered to be news anymore, an appellate court in New York has ruled that a series of e-mails constituted “signed writings” within the meaning on New York’s Statute of Frauds.  Consequently, they could be used to modify an employment agreement which provided that all modifications had to be signed by the parties.

     The court found that when each party typed his name at the end of his respective e-mail prior to sending it, this signified each party’s “intent to authenticate” the e-mail’s contents.  Thus, the e-mails fell within the scope of the modification provision of the employment agreement, and the contract was deemed to have been modified in accordance with the e-mail’s contents.

      There’s nothing remarkable about this ruling.  It relates back to the standard caveat nowadays that parties need to be careful about what they put in their e-mails, as they can obviously impact legal rights.  In this instance, if the parties didn’t want the e-mails to be considered writings, they should have had an express provision in the employment agreement which excluded e-mails from modifying the contract.  

     In fact, provisions such as these are becoming increasingly common as more and more people communicate via e-mail.  It depends, however, upon the client.  I have several technology clients who prefer e-mails and pdfs to actual paper when communicating with just about everyone, including their customers, prospects, employees, contractors, and attorneys.  While this may be easier and more efficient, it’s also easy—given the daily deluge of e-mails—to delete or overlook them (especially if they get caught in spam filters).  Thus, for those of you who prefer to communciate this way, just be aware of the potential ramifications.

     After my post about privacy yesterday, it’s nice to know that there are entrepreneurs out there who seek to make sure that our government—which generally has little problem with how private industry treats and shares our personal information—is as transparent as possible when it comes to its own information.  According to a story in the Washington Post, congressional staffers are outraged by a website, LegiStorm, which posts public information about the financial affairs of senior congressional staffers.       

     Under federal law, congressional staff members who earn more than $110,000 per year are required to file disclosure forms which list, among other things, their detailed financial holdings.  Why shouldn’t such staffers be subject to almost as much scrutiny as their bosses?  If they have the ear of some of the most powerful politicians in the world and serve as their handlers and gatekeepers, it only seems fair that the voters know if their financial interests may perhaps be influencing how their bosses vote on certain issues.  (Like issues involving privacy, for example.)  We sometimes forget that behind any politician is a group of people who write these influential laws.     

     And therein lies the irony:  Congress wrote these disclosure laws to help prevent public corruption and instill a sense of confidence in our public officials.  All staffers are obviously aware of them when they took their jobs.  So disclosure doesn’t seem to be the issue—it is the law, after all—but the dissemination that’s problematic.  Oh well, welcome to the internet age.  If congressional staffers really live in that much of a bubble where they think that they’re somehow exempt from close scrutiny in these politically polarizing times, then perhaps they’re as out of touch as some of the people they advise.         

     But the staffers have some legitimate concerns as well.  Some of the documents, which have since been redacted by the site, reportedly contained social security and bank account numbers.  Given the prevalence and ease of identity theft, this information obviously has to be removed prior to posting.  And if there is an instance of identity theft that can actually be traced back to the site (which is very unlikely), the site could conceivably be held liable.  There is such a thing as being too transparent.  While I may want to know if a staff member for a senator on the Finance Committee has large holdings in Fidelity, I don’t need to know the account numbers.  And we don’t want to dissuade smart, talented, and motivated people from joining the government if every conceivable detail of their financial lives is made public and widely disseminated.  Beyond these obvious concerns, however, sites like LegiStorm may help to keep Big Brother from getting too big . . . at least for a little while.

     In yet another invasion of privacy couched in the rhetoric of “but the consumer will benefit!” comes this story from the Washington Post.  Apparently, a small but growing number of ISPs are monitoring their users’ every click and keystroke.  The ISPs then harvest the data to determine a user’s interests and preferences and provide it to advertisers who make highly targeted pitches to the user.  I can see the pitch now:  “We’ve noticed that you’ve typed in the word “hemorrhoids” 12 times, searched Google 3 times, and visited 9 sites.  Here’s a coupon to try Preparation H for free.  It will stop the itch!”

      This monitoring is known as “deep-packet inspection” and it divides every aspect of a user’s data into packets that an ISP can analyze for content.   First, as a general matter, whenever I see anything with the words “deep” and “inspection” in a title, I get somewhat concerned without even having to read any further (similar to how the FBI first named its now infamous packet-sniffing software ”Carnivore,” but later changed it to the more benign-sounding “DCS1000″).  From a more substantive perspective, however, it represents a considerable escalation of an ISP’s ability to monitor its users.  Barring any legislative or regulatory action, it won’t be long until all ISPs engage in this practice.  According to the article, only 100,000 users are affected at the moment.

     As usual, the ISPs gain their users’ consent by burying the monitoring in their lengthy customer service agreements.  According to the article, one ISP—Knology—has a 27 page agreement and only makes vague reference to the system.  Few people actually have the time and energy to read them, and those that do will not necessarily understand them anyway.  The lawyers that draft them are not exactly known for their clarity, especially when it comes to a controversial subject such as this.  In fact, according to one Knology executive, there’s no violation of privacy at all.

     The article is silent as to how long an ISP actually retains all of this information, but presumably can retain it indefinitely.  And even if it doesn’t, once the information is disclosed and sold to advertisers, copies of it could continue to reside in cyberspace even if the ISP purges its records.  The article is also silent as to how such information could easily be disclosed to law enforcement or to parties involved in civil litigation.  So the march towards “zero privacy” continues. <sigh>

      There was an interesting consumer protection suit filed by the Pennsylvania Attorney General (”AG”) recently.  It seems that Waltham, Massachusetts resident Areg A. Sakanyan, who was operating a website,  www.unclaimedmoney.us.com, to supposedly help people locate unclaimed money, didn’t provide the advertised service.

     According to the AG, the site lured consumers to conduct an initial free search and then enticed them to purchase a “membership” for $24.95 which would give them the details they needed to claim any assets that the search uncovered.  The problem was that everyone apparently qualified for unclaimed assets—even superheroes and cartoon characters.  When the AG’s undercover investigators input names such as “Batman” and “Wily E. Coyote,” the site stated that they had multiple unclaimed assets waiting for them.  Not surprisingly, no details or information about a person’s supposed unclaimed assets were ever provided by the site once the $24.95 fee was paid.

     In many ways, this is a standard type of consumer action that one would expect an AG to undertake:  A service was advertised, money was paid, and nothing was provided.  What was interesting, however, was one of the disclosures that the site allegedly failed to make.  According to the AG, the site—among other things—failed to inform consumers that its unclaimed money database is based upon publicly available sources which could generally be accessed without charge.   

     While this was just one part of the AG’s complaint, it’s somewhat troubling if the AG is attempting to establish precedent that a for-profit content or database website would have to make disclosures that its information is available from free public sources.  The internet is replete with such services.  For example, while many lawyers can find cases, statutes, and other public records for free, for-profit services such as Westlaw and Lexis provide the same service for what can sometimes be a hefty fee.  Would a disclosure be warranted in this instance?  Perhaps not just yet . . . .

      Again, given some of the overtly fraudulent conduct alleged in the AG’s complaint, this is only one small part of the action.  But all AGs are given a great deal of discretion when deciding to pursue those businesses that it deems to be engaging in unfair or deceptive practices.  And most businesses settle or fold once the AG has them in its sights, especially given the lengthy and expensive proceedings that can ensue, as well as all of the negative publicity that such actions generate.  The proverbial “slippery slope” gets even slipperier if aggressive and politically-motivated AGs (i.e., those seeking higher office) are specifically looking for “high value targets” upon which to focus their energies.  And failure to put appropriate disclaimers on a site are particularly easy targets to pursue.