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Electronic Mail
Closer to home, everyday technology
poses risks in the more mundane form
of e-mail. The same tool that has
revolutionized business communications
has led to severe legal problems for
even the biggest companies.
Recent prosecutions have shown that
what employees say in e-mail can and
will be used against them in courts
of law. Unlike phone conversations,
e-mail files present a permanent record
of a correspondence that may later
prove damaging, even if the original
intent was innocent or if it is taken
out of context. In one case, an e-mail
sent by Silicon Valley investment
banker Frank Quattrone suggesting
that bankers in his firm “clean
up their files” as a federal
investigation of his firm was getting
underway proved to be a crucial factor
in his trial for obstruction of justice.(18)
E-mail also played a critical role
in the antitrust actions taken against
the world’s largest software
company, Microsoft Corp.(19)
Firms that do not have well-thought-out
document retention programs may find
themselves in trouble when they are
unable to produce subpoenaed documents
or if they are forced to hand over
large numbers of e-mails that can
be taken out of context and put the
firm in a bad light or expose the
firm to “fishing expeditions”
by opposing counsel.
In addition, very large sums of money
can hinge on e-mail communications.
The question of whether the receipt
of an e-mail constituted acceptance
of the contents played a key role
in the trial over whether some reinsurance
companies were liable to pay billions
of dollars more if the September 11
attacks on the World Trade Center
were found to constitute two occurrences,
as the developer asserted, or a single
occurrence, as was argued by the reinsurers.(20)
While affording an easy means of
exchanging information, e-mail raises
issues about what constitutes valid
electronic signatures and document
deliveries. Design firms have traditionally
delivered finished paper copies of
their designs imprinted with their
seal as the official completed versions.
Any changes to the project then could
be compared against those finished
plans, which could be used as the
basis for settling disputes.
E-mail, however, exposes architectural
and engineering firms to the danger
of loss of control over project changes
that are communicated electronically.
The approval of changes via e-mail
and the authority to make such changes
can become central issues in disputes
over project overruns or modifications.
Plans transmitted via e-mail can also
lead to disputes over whether the
designs were to be considered the
final version or were an intermediate
version and whether the delivery of the final
plans via e-mail was considered as
final.
In addition, architectural and engineering
firms face the same employer practices
liability issues common to all industries.
Those exposures include improper use
of e-mail, disclosure of proprietary
or personal information, and sending
of abusive or offensive material.
Internet and Network Security
Along with the issues raised by reliance
on e-mail, architectural and engineering
firms face a number of risks related
to use of the Internet and in-house
networks known as intranets as well
as reliance on electronic data storage.
The Internet provides firms a new
medium for marketing and communications
as well as a place to highlight their
talents. Web sites can be a showcase
for prestigious projects and new-designs
intranets can be a key means of communication
within a business.
If they do not take adequate precautions,
however, firms open themselves to
potential risks that were formerly
associated more with publishers and
broadcasters. For instance, the use
of third-party content, such as images
taken from newspapers, on its Web
site without proper clearance can
expose a firm to copyright claims.
There also are risks of personal injury
claims if libelous material or confidential
information is posted on a Web site.
When it comes to storing documents
electronically, firms also face new
exposures that were not an issue in
the days when paper plans were stored
in file cabinets. Now, designs in
progress and completed works that
are stored electronically may be subject
to corruption or theft. Designs built
with older versions of software may
not be readable with newer versions.
Data can degrade over time, and in
the case of a large building, even
a small error in a critical area could
cause major problems. In addition,
traditional threats such as flood,
fires, and power outages can also
destroy valuable data that is not
adequately backed up.
Inadequately protected networks can
be hit by malicious code that destroys
valuable data or be broken into by
hackers seeking to steal confidential
data. Besides concerns about their
own proprietary business information,
companies also have a legal responsibility
under federal privacy legislation
to protect confidential employee and
customer data. In addition, state
law in California requires companies
to notify residents when their personal
information has been compromised.
For hackers hunting for personal or
confidential corporate information,
human resources and accounting systems
make a tempting target.
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