E-Mail Confidentiality Statements and the Electronic Communications Privacy Act

It is common for e-mail from lawyers to have a statement at the end indicating that the e-mail is confidential and may be privileged, and that if you have received the e-mail in error you should delete it. Sometimes the statement also includes this line:

This email (including the attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521.

If you’re a lawyer and the statement at the end of your e-mail has that line quoted above, please do yourself a favor and remove it. Including that line only shows that you have no idea what the Electronic Communications Privacy Act does, and that you are comfortable repeatedly invoking a law even though you have no idea what is in it. That’s a pretty lousy image to present for your legal practice.

For those curious about the details, 18 U.S.C. §§ 2510-2521 is the federal Wiretap Act. It prohibits the real-time interception of the contents of any communications sent over any communications network without the permission of one of the parties. In 1986, the law was amended by the Electronic Communications Privacy Act to apply to “electronic communications,” which basically means all computer communications. Under the 1986 Act, it is a crime to intercept any electronic message between its send and delivery points absent an exception to the statute. Importantly, the Wiretap Act only applies when the communications are in transit. That means the statute doesn’t stop anyone from reading any e-mail that lands in their inbox, even if it was misdelivered there. That’s true for two reasons. First, If the e-mail has been sent to you, you are a party to it, and you can read it. Plus, once an e-mail has been delivered and it is sitting in your inbox, reading it cannot be an “intercept” because the e-mail in your inbox has already been delivered.

Now that you understand what the statute actually does, you can see why the disclaimer that I quoted above is rather nonsensical. First, the lawyer’s e-mail is “protected” by the statute only to the extent that every phone call and every e-mail, Facebook message, text message, IM, and every other electronic communication is protected. Second, by the time the reader actually sees the e-mail, the message has been delivered and the cited statute no longer provides any protection at all. So if you include that line, you’re basically saying that you think it’s noteworthy that your e-mail has the same protection has all e-mails — which in this case is none at all.