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Prosecutors and plaintiffs’
attorneys often will seek to comb
through a firm’s e-mail files
during investigations or in the discovery
process. A document retention plan
should ensure that crucial e-mail
is not deleted and also establish
a regular schedule for the deletion
of unnecessary e-mail.
Another important consideration is
that under the Electronic Signatures
in Global and National Commerce Act,
communications via e-mail can be as
legally binding as signed contracts
on paper.(36)
Signed into law by President Bill
Clinton in June 2000, the act gives
electronic signatures the same weight
as those written in ink on paper.
It also requires that, to be legally
enforceable, electronic contracts
and records must be in a form that
is capable of being retained and accurately
reproduced for later reference.
To prevent unwanted acceptance of
changes in design or even contractual
terms, firms should establish contractual
controls over customer communications.
This should clearly set out what constitutes
authorized communications and who
within the client company has the
authority to approve or to recommend
changes in the scope of the project
or in design. Firms also should place
a disclaimer on e-mail that sets out
their policy for design use.
A firm’s procedures to deal
with project communications via e-mail
should cover what constitutes delivery
of a document via e-mail or the Internet
and what constitutes a sealed deliverable.
To track crucial documents, such as
sealed plans or original versions
of a design, firms should use a docket
system that will monitor and manage
document changes and protect against
unauthorized alterations.
For their own employees, firms should
have a clear policy stating what may
or may not be sent via e-mail and
strictly prohibiting the sending of
material that is objectionable or
that possibly defames another employee
or a rival firm. Even when sent to
a small group of people, e-mails can
be potentially libelous. In a recent
libel action seeking $100,000 in damages,
a member of a Massachusetts civic
group was sued by another member over
an e-mail that was sent to just two
people.(37)
Storage and Network Security
Along with the risks brought about
by e-mail, firms also need to take
measures to protect themselves against
exposures brought about by the use
of the Internet and internal corporate networks.
While paper plans and files can be
lost or destroyed, they generally
don’t simply vanish or become
unreadable when the file cabinet is
damaged. If a computer system is damaged
or compromised, however, many hours
or even weeks of work can be lost
in an instant. For an architectural
or engineering firm, the loss of data
can mean penalties for missed deadlines
as they are forced to recreate work.
Computer files should be protected
with formal plans to back up digital
data. Those plans should include periodic
testing to ensure that the documents
would be restored to their original
condition in the event of a system
crash.
Because computer systems also can
be damaged physically, firms should
maintain offsite backup storage. Then,
if the office is destroyed in a fire
or damaged in a flood or even closed
down due to an accident at a nearby
building, computer files can still
be accessed from the remote location,
enabling employees to continue to
work and communicate on a project
and ensuring that the work in progress
as well as finished, copyrighted designs
are not lost.
As a number of incidents have shown,
electronic data and documents can
be pilfered, damaged, or destroyed
by computer criminals hacking into
a system. Viruses can delete whole files, render
them unreliable by deleting portions
of them, or make them totally unreadable.
To protect against those dangers,
firms
need to maintain full firewalls and
keep antivirus programs up to date.
To ensure that files or computer
systems are not misused by employees,
firms should institute formally documented
access controls, such as passwords
that are maintained by managers and
changed frequently. A key part of
the effort to maintain computer security
is adequate employee training.
Internet Exposures
As A&E firms make greater use
of the Internet in daily commerce,
they also open themselves to exposures
that had previously been limited to
broadcasters and publishers, including the unauthorized
use of copyrighted images. To manage
those risks, firms should establish
policies and procedures regarding
intellectual property rights that
include proper content clearance procedures
and define what employee and client
information should be considered confidential.
Firms should also seek outside counsel
as needed to protect against personal
injury or copyright infringement issues.
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