(This ran in Infoworld back in 1994.)

Do you think about who owns your email messages and what they can do with them? Probably not all the time, and probably only after you send a message in a fit of pique that you would rather not have. But it is an especially sticky issue for corporations and getting stickier by the day as more of it accumulates.

It is not a clear-cut question, as I found out lately when I started digging into this issue after hearing about the various legal ramifications at a recent Electronic Messaging Association conference. What got me started was a column by Penn Jillette for PC/Computing about some of the reporters who managed to read Tonya Harding’s email messages on the Lillehammer Olympics computing system that both press and players were connected to. Actually, they didn’t read any messages, according to Penn: they just hacked her password and logged in to see that she had a bunch of waiting messages in her inbox.

There are two issues here that need further clarification: who owns your email, and what constitutes covert (or illegal) viewing? If, as a journalist, I look in your mailbox and see that you’ve gotten your monthly porn mag and write a story about how you subscribe to smut, have I done anything wrong? Legally, I don’t think so: I didn’t open or tamper with your mail. When you come home from work, your magazine is still in your mailbox, waiting for your viewing pleasure. Ethically, I might not be able to look myself in the mirror the next day.

Let’s take a different tack for a moment. Suppose I send you a letter talking about how awful I’ve been treated by a third party. Who owns that letter? In Penn’s column, he thinks it should be you, the recipient, who owns this information. However, several lawyers indicate it is the sender who retains all copyright to that material, even while the recipient retains control over the actual physical letter itself. This means that you can’t publish my words without my consent, if the copyright laws hold. In order for information to be copyrighted, it has to exist in tangible form, according to my legal advisors. Is email tangible enough? I can’t be sure.

But let’s assume that it is covered. Who is the actual “owner” anyway? It could be the creator, if the creator uses an email system that he or she owns. Or it could be the creator’s corporation, which is the most likely owner of any email system in use if we use who pays for the email system as indication of ownership. That puts a different spin on things when it comes to looking at Tonya’s inbox: since it isn’t her inbox, it is the Olympics Committee’s. This was the result of a celebrated case involving some employees of Epson who were fired a few years ago over the content of their email messages. Some of you may be uncomfortable with the legal right of your boss (or some clerk in accounting) having the right to read your email. I certainly am.

So where do journalists come in? You got me: I don’t like reading anyone else’s email, to be sure. But now we’ve gone from dealing with ownership to examining privacy issues. This is still pretty difficult to pin down. As you all know, it is easy to hit the “forward” button in your favorite email package and in a few keystrokes, off my message goes to someone that maybe I’ve never met and certainly didn’t give you any permission to do so. Common courtesy (and various email experts, including “The Elements of E-mail style,” a guidebook by David Angell and Brent Heslop) says for you to ask permission before you forward my message, but we all can remember times that we sent mail without asking. So we are now talking about “netettiquette” or rules of thumb: A fuzzy area, to be sure. Does your corporation have an explicit policy covering these gray areas? If not, now might be the time to get something done about it, before someone tries to read your own messages. Or worse yet, before you get sued.