Unless you’ve agreed to confidentiality, it ain’t confidential

Nov 5th, 2017 | By
Category: Notes and Comment Blog

What was that we were saying about how it doesn’t work to send someone a furious abusive email and then announce that it’s confidential? How you can’t just send people shit they didn’t ask for and then order them to keep it secret? Behold Marc Randazza in 2014 saying exactly that, and unlike me he’s a lawyer.

This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:

CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED

The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.

Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.

And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.

For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.

And have you agreed to confidentiality? No you have not.

Here’s Michael Shermer trying it on that post of Phil Torres’s yesterday:

As for our email correspondence Torres, at the bottom of every email I’ve sent you appears this statement below. I have nothing to hide at all, but privacy laws exist for a reason and our correspondence is private. You asked if you could make it public and I declined. If you do not understand why the law protects peoples’ privacy, or why people want privacy, then you don’t understand what privacy means. Here is the statement that appears in every email I send out:

This private email message is for the sole use of the intended recipient(s) and may contain confidential information. Any unauthorized publication, broadcast, review, use, disclosure or distribution of its content, substance or meaning, by email, social media or any other means, is prohibited. If you are not the intended recipient, contact the sender by reply email and destroy all copies of the original message.

So ridiculous. “Is prohibited” – it sounds so official but is so meaningless. Prohibited by whom, Kemosabe? You can’t just slap “is prohibited” on things you don’t want other people to do and expect them to obey. The “unauthorized” is equally ludicrous. We don’t have to be “authorized” to talk about stupid shit people have said to us without our inviting them to.

Marc Randazza again:

Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.

Bottom line: you send me unsolicited insults, don’t expect me to protect your “privacy.”

Big thanks to Screechy Monkey for citing the Randazza post.

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