Inside Iowa State

July 20, 2006

E-mail, fax notices: Sometimes useful, sometimes not

by Diana Pounds

-- "This e-mail may contain confidential or privileged material."

-- "If you aren't the intended recipient of this fax, disclosing it is prohibited."

Disclaimers and notices like these are appearing with increasing frequency on business faxes and e-mail messages. So, if everyone else doing it, should we be adding disclaimers to our university e-mails and faxes?

In this Q&A, attorney Keith Bystrom in the university counsel's office talks about when it's appropriate to add notices to university communications and when disclaimers aren't really needed.

Should we routinely add notices to e-mail and faxes that we send from the office?

It's not necessary or desirable to add a notice to every fax or e-mail message that's sent from a university department. Notices are important, however, on messages that include private, confidential information. That includes medical, psychological, financial or tax-related information about individuals and students' academic records.

How does a notice help?

It helps in a couple of ways. It alerts the recipient that the information is confidential and shouldn't be shared. And if a message inadvertently goes to the wrong recipient, a notice can tell the recipient what to do with the errant message.

Do notices provide legal protection?

Notices don't provide a great deal of legal protection and some would argue that they don't provide any. If you inadvertently send confidential information to the wrong person and that person uses the information improperly, you and the university (since you are an agent of the university) have much more responsibility for the mishap. However, the notice does make it more difficult for the receiver to argue that he or she didn't know the message was intended to be confidential.

Does a notice provide enough protection for a confidential message?

A notice or disclaimer doesn't resolve your responsibility to send sensitive data securely. E-mail and fax messages aren't totally secure. Depending on how sensitive the information is, you need to take extra precautions. For example, when we send a confidential fax from our office, we always call the intended recipient and have him or her standing by at the fax machine to pick up the message. If the recipient isn't available, we don't send the fax.

Is the unintended recipient of an e-mail legally obligated to obey those warnings not to read or forward the mail?

Such notices are generally an attempt at making a unilateral contract with someone, and chances are the courts will say that's not really an enforceable contract. However, a receiver who intentionally distributes something that's clearly confidential -- someone's medical records, for example -- could possibly be violating the federal Electronic Communications Privacy Act.

Do you need to put a notice on confidential communications that stay on campus?

A notice is probably not as important on internal university communications because faculty and staff are more aware of confidentiality requirements on student records and other sensitive information. However, if the message contains confidential information, it does not hurt to include a notice. The best thing about a notice is that it alerts the receiver that he or she is receiving confidential information and needs to be careful with it. The last thing you want is for a confidential communication to be forwarded to someone else or left unattended in a public area.

Bloggers are fond of ridiculing notices and disclaimers. Is it deserved?

The bloggers are going after a lot of people who aren't handling sensitive information, yet are peppering their electronic communications with disclaimers that are threatening or lengthy. Many companies do seem to require notices on all communications. If they're not handling confidential information, there's little reason to include notices. Some notices are further lengthened with references to the Electronic Communications Privacy Act. We don't use that reference on our office notices.

What ISU offices include notices on e-mail or faxes?

Some of the offices that the Office of University Counsel has advised to include notices on confidential messages are student health, financial aid and the treasurer.

How do we go about developing a notice for our office faxes or e-mails?

Call the Office of University Counsel, 4-5352. Officials there can help you decide if you need a notice and offer advice on the wording.

It's not necessary or desirable to add a notice to every fax or e-mail message that's sent from a university department. Notices are important, however, on messages that include private, confidential information.