When E-Mail Bites Back

THIS ANTITRUST THING,'' Microsoft chairman Bill Gates allegedly told executives from Intel at a meeting in 1995, ""will blow over.'' Microsoft wasn't changing its business practices at all as a result of the government investigation, Gates continued, according to handwritten notes by an Intel executive--except that it might revise its policy on keeping records of corporate e-mail. That may have been meant as a joke. As of last week the company has never had an e-mail policy, according to a Microsoft spokesman. Thus in its protracted investigation the government was able to get its hands on an estimated 3.3 million Microsoft documents, including mega-bytes of e-mail messages dating from the early 1990s--and is now using them to contradict Gates's own videotaped testimony in the most significant antitrust case of the decade.

From the glass towers of midtown Manhattan to the glass shoe boxes of Silicon Valley rose a muffled murmur of clicks last week, the sound of cubicle dwellers hitting DELETE as they scrolled through years of accumulated electronic correspondence, in search of business plans that smacked of brilliance, as well as illegality; projections of how much the company could save by laying off everyone over 55; dirty jokes; mash notes, and comments about the CEO's bald spot. Those who didn't think of this on their own were encouraged to do so by cybersavvy employers, like Amazon.com, the online book merchant, which this fall instructed workers that all nonessential documents ""should be destroyed when they are no longer current or useful,'' according to a company spokesman. Until now, says Los Angeles attorney Michael Overly, an expert on electronic communications, only around a third of all businesses have had formal policies on the content, handling and archiving of e-mail, and only about a third of those have been actively enforced. But he predicts these numbers will climb sharply, propelled not just by the Microsoft trial but also by Chevron's $2.2 million settlement in 1995 with a group of female employees who took offense at e-mail postings such as the one headed ""25 reasons why beer is better than women.'' For many companies, he says, ""the honeymoon with e-mail is coming to an end.''

Surprisingly, indiscreet e-mail can be even more dangerous than written records and memos. An unfiled note gets deleted in the next day's trash, but in a typical office network almost all e-mail is recorded on the system server (graphic). Messages sent years ago may live on in taped storage, far beyond the reach of a delete key, although not of a subpoena. Lack of space is rarely a problem; Randy Kolb, information services director for the city of Eugene, Ore., estimates that one employee has 180 megabytes of e-mail stored up, equivalent to roughly 180,000 typed sheets of paper. But it would be the work of minutes for a computer to sort it all for lawyers in search of a single incriminating phrase.

Moreover, the seeming evanescence of e-mail encourages people to use it to say things they would never commit to paper. ""It looks more like a note you pass in the back of the classroom than a handout from the teacher,'' says Joe Walther, editor of The Journal of Online Behavior. ""People get sloppy. They write things they shouldn't write.'' His description fits the behavior of a group of Netscape employees who organized an online newsletter called Really Bad Attitude. Over two years members of the group exchanged thousands of messages about bosses, co-workers and the food in the cafeteria, running the gamut from affectionately irreverent to shockingly puerile. As a minor bit of fallout from the latest Trial of the Century, Microsoft lawyers subpoenaed all the messages last summer. Whatever their legal relevance--and people familiar with the contents say they had nothing to do with the Netscape-Microsoft browser wars--one possible consequence is already keeping cofounder Jamie Zawinski awake nights: ""If [the e-mails] got back to their managers, [they] could very well cost [the senders] their jobs.''

Of course, most e-mail users will never be caught up in a huge antitrust trial. America Online, which processes 37 million pieces of e-mail a day for its members, keeps them on file for only 25 to 30 days, then destroys them irretrievably. Before that time, though, they can be viewed by law-enforcement officials with a search warrant; the FBI has looked for child pornographers this way. Most people's e-mail disasters are of the run-of-the-mill variety. A typical victim was Mimi Rumpp, an executive assistant at New Line Cinema, who once hit the REPLY button on a message instead of the FORWARD button and thereby inadvertently sent a caustic remark about a co-worker to the co-worker herself. This is a mistake, obviously, that one wouldn't make with a phone call. They are still on speaking terms, but just a few months ago Rumpp, not having fully learned her lesson, accidentally sent an animated e-mail greeting card featuring an exotic dancer to a writer she had never met, instead of her husband. In that case, though, she was actually lucky she used e-mail instead of a stamp. As soon as she realized her mistake, she dashed off an abject apology to the writer--who replied that she hadn't been able to read the document in the first place because it was incompatible with her computer.

Even before Gates's e-mail became an exhibit against him, companies were starting to take the problem seriously; a survey by the American Management Association this year found that 20 percent of companies have some system for reviewing employee e-mail, usually by spot checks, up from 15 percent in 1997. There also has been a boom in programs that automatically censor e-mail, especially those bound for recipients outside the company. Securities firms are required by the Securities and Exchange Commission to monitor outgoing e-mail for high-pressure sales tactics and leaks of information that could give rise to insider-trading violations. About 40 companies use Accentor, by SRA International, which employs natural-language algorithms to check for forbidden phrases and meanings. (""Microsoft'' wouldn't cause alarms, but ""this stock will be the next Microsoft'' might.) Another program, MIMEsweeper, by Content Technologies, is used by about 4,000 companies to block e-mail containing profanity, racial slurs, sexual content and anything else the company wants to specify, such as the code name of a secret project. Of course, there's always the danger that, as one data-marketing firm discovered, you won't be able to receive an e-mailed copy of the Starr Report.