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FYI: yr e-mail can haunt u 4ever

Times Staff Writer

Why can’t we behave? When the risks are huge and the potential consequences dire, why can’t we stop ourselves from typing those suicidal e-mails, hitting the send key and sealing our doom?

This month, it’s West Virginia Gov. Bob Wise’s turn to ponder those questions. Until a few weeks ago, incumbent Wise was a shoo-in as Democratic candidate in his state’s next gubernatorial election. Now, members of his own party are suggesting he resign; Republicans are savoring their improved chances -- and Wise, 55, has proved he is anything but.

The reckless fingers of fate -- his own -- may have typed him right out of the governor’s office. And his cyber-trail of decidedly unromantic e-mails to a state employee with whom he may have been romantically involved are making him something of a literary laughingstock as well.

Wise is alleged to have had a relationship with Angela Mascia-Frye, 35, of the West Virginia Development Corp. Both are married -- to other people. And they corresponded by e-mail with the kind of dull propriety that one Web wag described as having all the passion of a tuna sandwich. (The most intimate missives are like this one, from Mascia-Frye to Wise: “Too bad you canceled your visit at our offices. We made special coffee for you today.” And like this, from the governor: “Sorry to have missed you tonight at Alex’s.... I walked around for an hour ... and called out your name in 5 languages”).

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There is no proof in the messages that they even had a sexual affair -- nor has either of them admitted specifics of their relationship. But the mere fact that the governor and his possible paramour engaged in extensive e-mail conversation -- 541 of their messages have been retrieved and released to the public, under the Freedom of Information Act -- has put them in harm’s way. Mascia-Frye’s husband has filed for divorce, and the governor’s wife has released a statement saying she is “angry” and their two children are “disappointed” in Wise but still love him.

And so one more casualty of the electronic highway has crashed and burned. Wise certainly isn’t the first and won’t be the last. (This probably won’t happen to President George W. Bush, who reportedly was advised before his inauguration to avoid e-mail entirely while in office. He is said to have sent messages to his friends, telling them he’d be using snail mail during his tenure, because of security risks.)

Gov. Gray Davis’ office in Sacramento divulges that Davis doesn’t use e-mail either -- although the state’s first lady does. Other citizens who demand total privacy and security would be wise to follow suit.

Lesson One: E-mail is never private. And never totally secure. It is indelible and will not be erased when you hit “delete.” Somewhere, it will continue to exist in cyberspace. No matter what you do to protect yourself, experts say, e-mail is more exposed than messages on postcards. It is the equivalent of talking on a party line. Your password, no matter how obscure, does not protect you from hackers, snoops or any officer with a warrant to subpoena your e-mails in professional or personal legal matters, such as divorce and custody cases.

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Lesson Two: Experts say most people know this rule but continue to ignore it. Ask yourself before you e-mail any message: Would I feel comfortable writing this in longhand, signing my name to it and putting it in a mailbox? If the answer is no, don’t put it in an electronic message. Bill Gates, the Big Daddy of computing, didn’t follow this rule and was hugely embarrassed as a result. If he couldn’t keep himself out of trouble, what makes you think you can?

In the huge antitrust case against Microsoft, Gates was seen worldwide on CNN, admitting that, yes, he had sent the extremely damaging e-mails that were presented in court and that essentially established that his firm had engaged in anti-competitive business practices.

In the Iran-Contra affair of the late ‘80s, it was Oliver North’s e-mail that helped prove that funds had been diverted to unauthorized projects. More recently, in the Enron meltdown, it was executive e-mails within the company that were used to document claims of improper practices.

In the early days of computers, most people’s technological tragedies stemmed from simple mistakes, like hitting the wrong button. Linda Ellerbee, author and TV producer, began her career as a journalist for the Associated Press in Dallas. In 1972, she wrote a letter to a friend, which she later described as follows: “I expressed myself candidly about the Dallas City Council, the city of Dallas, the Vietnam War, a man I was dating and, naturally, my employer.” She hit “send” and mistakenly sent her missive out over the AP news wire. She was promptly fired.

These days, mistakes are more often made by people who know what they’re doing but, at that moment, simply don’t care.

Why do people engage in such risky business? Why can’t they keep their itchy digits off the keyboard when they feel the urge to say something that could come back and bite them?

Attorney Michael Overly, a partner in the Los Angeles office of Foley & Lardner, is an expert on e-mail privacy and the author of books on electronic evidence and use of technology in the workplace. He says problems are increasingly pervasive worldwide, and most people still toss off sensitive e-mails without realizing their “incredible importance as lasting forms of communication and as an incredibly damaging source of evidence.”

When Overly lectures, he tries to convey to clients “just how indelible their e-mails are. People need to understand that ... despite company policy that may say e-mail is deleted after 30 days, it is by no means gone. We’ve seen lots of instances where executives, including Mr. Gates, have believed their e-mails were deleted long ago -- until they’re sitting in court and having those same e-mails presented as evidence.”

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Some companies are working on ways to permanently erase e-mail, or impose a lifetime on it, after which it will be irretrievable.

One technique, Overly says, sends the message to an intermediary company, where it is encrypted before arriving at its destination. When the e-mail is opened, it goes back to the intermediary to find the encryption key. After 30 days, the key is destroyed. One problem, so far, has been that recipients may make copies of the text, which nullifies security measures.

Usually, it’s the smarter, more sophisticated and highly placed individuals who get themselves in the most trouble, in Overly’s experience. Even though there have been dozens of highly publicized cases, and these people intellectually know the pitfalls and permanence of e-mail, they tend to perceive their own messages as ephemeral -- here today and gone tomorrow.

“They truly believe it will disappear, no matter what we tell them. And when these people get emotional or angry about something, they just let go with their emotions. Stuff they’d never send if they had to write it the old-fashioned way -- they just tap it out on the keyboard, hit the button and it’s gone. With no way to take it back. No possibility of recall. People think to themselves, ‘I’m a senior executive, I should be able to say what I want.’ Type type and gone. ‘I’m a doctor, I have a right to say what I think.’ Type type and gone. ‘I’m Bill Gates. I can say it.’ Gone.”

Overly recalls the 2001 case of the chief executive of Cerner Software, who wrote an e-mail about his concern that senior managers were unable to keep up with the whereabouts of their staff, among other problems. That e-mail was leaked onto the Internet, ultimately resulting in a 28% decrease in the value of the company’s stock, Overly says. “It made clients feel insecure about the company and its management.”

Cases of sexual harassment against big companies have proliferated, according to public documents, perhaps because e-mail has made them easier to prove. A multimillion-dollar settlement against a subsidiary of Chevron was based, in part, on an e-mail listing 12 reasons why beer is better than women. It was something no one would ever hang on an office wall, Overly says, but it was freely distributed by e-mail.

Michael Underhill, a partner at Morgan, Lewis & Bockius, in Washington, D.C., often litigates cases involving e-commerce and other technological issues. He says companies are increasingly setting up programs to monitor employee e-mail, using software that flags offensive words.

The New York Times fired 22 staff members for sending and forwarding dirty jokes in 1999, Overly says. Dow Chemical, at about the same time, fired 75 employees for inappropriate jokes. In December 2000, Computer Associates fired an undisclosed number of employees for e-mailing sexually explicit jokes.

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“We tell clients, when they’re considering these mass firings of employees, that they’d better be very careful,” Overly says. “They’d better be prepared to also fire their most senior managers, corporate officers and directors. In all likelihood, you will find some of those people have committed the same offense.”

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Gayle Pollard-Terry contributed to this article.


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