Periodically I trade emails with some people within the ATF. I recently noticed they have a rather strongly worded restriction on the use of the email attached to each message. This restriction is identical regardless of the person I received it from within the ATF. I admit my sample size is small but it does include people in significantly different geographical area.
The restriction is (bold in the original):
******* NOTICE: This e-mail message and any attached files are intended solely for the use of the addressee(s) named above in connection with official business. This communication may contain Sensitive But Unclassified information that may be statutorily or otherwise prohibited from being released without appropriate approval. Any review, use, or dissemination of this e-mail message and any attached file(s) in any form outside of the Bureau of Alcohol, Tobacco, Firearms & Explosives or the Department of Justice without express authorization is strictly prohibited.
I didn’t remember it always being that strongly worded so I went looking at previous emails to see if it had changed. It had.
The notice above first appeared on March 29, 2011. A previous email from the same person on March 23, 2010 (the previous year) had this restriction (bold in the original):
******* NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments).
So sometime in that year (and six days) between March 2010 and March 2011 the notice changed. My hypothesis is that the leaking of various emails associated with operation Fast and Furious caused a review of the restriction and a rewording which was much more strict.
The question I have (calling all lawyers!) is; Does the restriction have any legal weight in use against me or is it merely a legal bluff? For example, am I at risk for merely revealing the restriction even though I did not reveal the other contents of the emails? What if I were to reveal to the public the gist of one or more email discussions that clearly was not “sensitive information” but might be somewhat embarrassing to the ATF?
When I worked at HHS, we had a template for our email signatures that was to be followed. Disclaimers like the above were forbidden because they were unenforceable. Of course, HHS <> BATFE.
I’m not a lawyer, but I have designed dozens of such policies for corporate clients; and am familiar with the law (and case law) surrounding them.
Such disclaimers have no legal force on anyone other than an employee of an agency of the executive branch of the federal government.
Two caveats to that:
1. Unlawfully obtained information, through theft, misappropriation, or deliberate inducement, ALWAYS incurs liability (even for reporters… though it’s a gray area).
2. Classified information, even if obtained unintentionally MAY incur liability.
F-Troop works for us, therefore that warning should apply only to those inside F-Troop, and even unless it’s classified it shouldn’t carry any weight. They may see it very differently of course, but that wouldn’t make them right.
Then again, they could at some point rule all BATFE activity as “classified” just to save their own skins from prosecution, thereby completing the transmogrification from a tax collection agency to a secret police. What then?
If you’re interested in avoiding them trying to screw with you, well that’s a whole different subject. The game of push verses shove can be played in several directions.
I’ve always felt those notices should be worded more like this:
This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have received this transmission in error, then I’m an idiot for sending it to the wrong person(s). Also, this communication may contain Sensitive But Unclassified information that may be statutorily or otherwise prohibited from being released without appropriate approval which means I’m an even bigger idiot for sending it out via SMTP where any nimrod running a mail server between the two of us could have read the entire message.
Utterly meaningless “restriction” with respect to anyone not an DOJ/ATF employee.
i can’t speak about the legal angle, and i don’t need to tell you about the technical issues surrounding email being sent in plain text over sniffable networks and stored on hackable servers, again in plain text form. if they truly wanted or needed to maintain confidentiality, as opposed to merely providing themselves with an excuse in court, they’d either have to go for end-to-end encryption or abandon email entirely.
geez, thinking back to when i first heard “email is as secure as a postcard, encrypt any important text” makes me feel stupidly old now. my PGP key expired ages ago because nobody i ever emailed had any idea what it was.