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Education

The educational piece here is for you to consider that
everything you do in business communication is, in some
ways, on the record. Optimists will see this as a cold
shower for scheming thieves. Pessimists will see this as the
end of freedom as business representatives retreat into self-
Legal ease: censorship and paranoia.

I prefer not to pass judgment on this contemporary reality
– because that is not my role. Instead, I encourage you to
think about the content of your communication to be sure
you are comfortable with all of it. A simple rule of thumb,
for example, is to never send an email that you would not be
comfortable reading on the Wall Street Journal's homepage
the next day.
Secrets: At the very least, you'll find this rule will tend to reduce the

number of rude or insulting messages you may be tempted
A contemporary to send. On a more concrete level, it's not productive to
create evidence that makes you look bad – regardless of
whether you are truly bad.
legal take Each nugget of digital information (that is, all of our

communication) might be accessed at one point or another.
By Adam Atlas Therefore, communication should be made in a manner
Attorney at Law that is consistent with intent.
f you have no business secrets, stop here. If you're For example, if you are executing on an aggressive – but legal
still with me, I believe you'll find it useful to have – business plan, it does not play in your favor to pepper your
a refresher on secrets, privacy and confidentiality communication with intentions that are more aggressive
I in the contemporary reality. Business, being almost than your true intent. If you have a plan to aggressively
entirely electronic, means that more or less everything we compete against a competing business, perhaps don't say
do is documented. This is a double-edged sword. that you are going to steal their business; say instead that
you are going to ferociously compete to win it.
On one hand, we can benefit because electronic Are confidentiality clauses useless?
breadcrumbs can protect our rights. On the other hand,
our digital trails include our blunders and everything in No. The ready availability of data concerning all
between. However, despite the ability to record and store communications is entirely separate from the legal
nearly all communications, the law of contract remains a treatment of that data. A contract is the law between the
powerful means of controlling information disclosed in parties who sign it. If a party has signed a confidentiality
business dealings. clause that prevents the entity from using or disclosing
certain information, then the party bound by that clause
In an article on secrets, it's tempting to get into a discussion has a legal duty to honor it.
of whether what some people call the "surveillance state"
is good, bad or indifferent. I'll refrain from getting into The fact that information is very easy to collect, store
that debate, as I don't think my contribution to that debate and disclose does not decrease the effectiveness of
would change the reality for business today: namely, that all contracts governing that information. In fact, in today's
business communication is recorded. My interest is less in business context, there is a greater need than ever to sign
law enforcement and more in ordinary business recording confidentiality agreements and clauses.
of routine business communications. Emails, chats, phone
calls, for example, are all subject to easy recording. Fortunately, the law is still very much in effect. We should
not confuse the ease with which information can be stored
Is anything off the record? or accessed as evidencing any lessening of the application
Nothing is fleeting. Everything is permanent. Most of contracts. I recommend being more careful than ever
documents, emails, chats, phone calls, etc., are all recorded in thinking about the information you collect, use and
somewhere. I am not referring to law enforcement or disclose, because it is now easier than ever to (willingly or
security services recording our every digital moment, but unwillingly) breach an obligation of confidentiality.
in ordinary business communications, it is quite easy to
maintain complete records of all communication. All-in Note, however, that distinctions exist between
recording of calls is not uncommon in business today. confidentiality, non-solicitation and non-compete clauses.
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