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E-Mail Culture Goes to Court

Microsoft case shows how perception of e-mail as private and casual clashes with efforts to use it in litigation.

Once upon a time, workplace communication took place in two basic ways: water-cooler chatter and the official, signed and dated memorandum.

But then the world changed. Smart people and silicon begat computers, computers begat a new way of talking, called e-mail, and e-mail begat a thicket of legal and ethical issues.

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Nowhere is the prevalence, and some would say pitfalls, of electronic mail more evident than in the historic antitrust trial under way in Washington against Microsoft Corp. In its opening argument against the company, accused of trying to stifle competition, the Justice Department attempted to weave a noose around Microsoft with incriminating-sounding e-mail from chairman Bill Gates and others.

"We're going to cut off their air supply. Everything they're selling, we're going to give away for free," the federal government claimed a Microsoft vice president wrote about a competitor in an e-mail.

Another electronic communication included in the federal complaint allegedly comes from Bill Gates. It contains what seems to be a swaggering offer to pay off another company to switch from a competitor's product to Microsoft's browser software for surfing the Internet.

Microsoft lawyers chastised the government's courtroom presentation, as it has the sound bites that have leaked from its complaint for weeks running up to the start of the trial.

They were, according to Microsoft attorney William Neukom, "based entirely on loose and unreliable rhetoric and snippets that were not in any reliable context."

Microsoft has not directly refuted the substance of those e-mail messages, or their admissibility as evidence. But spokesman Jim Cullinan says Microsoft takes strong issue with incrimination by e-mail: "E-mail is not company policy. It's informal communication."

Easy to misread

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In the end, the trial judge will have to determine what weight to give the electronic messages, but many experts regard it as a form of communication tailor-made for misinterpretation, and one that gets many ordinary people into trouble every day.

The ways are many. Clumsy humor, off-color jokes, spontaneous "flame" mail that is regretted seconds after it's sent, inarticulateness, careless keyboarding that sends any of the above to the entire work force, and a host of other missteps that because they are in writing look worse and last longer than conversation.

The basic problem is that people treat e-mail as "more ephemeral" than something written and delivered on paper, says Robert Anderson of the Rand Corp. in Santa Monica, Calif. Mr. Anderson has studied the ethics and etiquette of e-mail and found it a minefield of problems.

There are debates about who owns it, though the courts have generally ruled that when e-mail occurs within an organization on its computer system, it belongs, ultimately, to the organization. But e-mail sent over the phone lines, like mail, is regarded as private.

As the Microsoft case shows, corporate e-mail is certainly admissible in court, which only adds to the gap that Anderson says exists between how most people regard e-mail, as ultraprivate and even more discreet than conversation, and the reality.

"E-mail has been subpoenaed in a number of court cases, and firms have had to go into their archives and produce it," says Anderson. That has to make a lot of companies wonder if saving all e-mail for the archives is worth the risk, he says.

Even messages on a home computer sometimes become legal evidence.

To back up his accusations against President Clinton, for instance, independent counsel Kenneth Starr cited deleted e-mail recovered from not only Monica Lewinsky's Pentagon computer, but her home computer as well.

Company personnel offices are increasingly dealing with the problems that arise from e-mail. An off-color joke, uninvited or seen by others, can constitute sexual harassment if the company doesn't take action. Employees sued Morgan Stanley Group Inc. in 1997 for allegedly allowing racist messages to be sent through the companies' networks. (A judge ruled that a racist environment was not created.)

Policies vary from organization to organization about how much privacy to afford individual e-mail and when to make communications public or to voluntarily make them available to the police.

Paul Soukup, a communications professor at Santa Clara University in California's Silicon Valley, says e-mail is going through all the normal challenges that accompany the growth of new forms of communication technology, whether the printing press or television.

"It's a new technology that started out being used by a very homogenous group" of academics and researchers on the Internet, says Mr. Soukup. But, he adds, " as you open it up to more and more people, you create more uncertainty over how best to use it."

Etiquette and ethics

Indeed, a host of new sites on the World Wide Web have blossomed in the last few years that deal with recommended e-mail etiquette. One hint: conciseness is good.

While most experts agree one of the biggest dangers of e-mail is that it allows for blurting out half-baked thoughts, others see in that unbridled communication a kind of profile of our culture.

Looking at the kind of locker-room swagger of some of the alleged Microsoft e-mail, Soukup sees a parallel with the superaggressive rhetoric now commonplace in political discourse.

"We seem to have lost some of our mutual respect. The language is a kind of index of where we are as a culture," Soukup says.

"In some ways, it's just etiquette. But etiquette touches on ethics."

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