Watch out for e-mail trails

Put aside all the questions of whether Microsoft or the US Department of Justice has the stronger case and remember this: given the way the Justice Department and some US states have leveraged Microsoft's internal e-mail documents to cement their arguments, it is time for corporations to clean up their e-mail content and trails.

The Justice Department and state attorneys general are out to prove that Microsoft has used illegal tactics to ensure the commercial success of its products. Microsoft is facing an opponent unlike any before -- it has had broad access to and is relying in part on internal Microsoft e-mail.

There was little surprise in the suit itself. Microsoft's eleventh-hour attempt to settle made for some great drama, but it seems that we should settle in for a prolonged fight. Though the US economy probably isn't at risk, I do think that Microsoft did itself (and the industry) a disservice by not coming to terms with the government. These lawsuits will create a major distraction for senior management.

For months to come, Microsoft executives are going to have to explain why their e-mail contains such statements as "if we [Microsoft] take away IE [Internet Explorer] from the O/S, most nav [Netscape Navigator] users will never switch to us".

One Microsoft executive knew what was at risk when he wrote: "No matter what happens, we have to slow Netscape's ability to drive new protocols/stds down."

Then there was the sentiment that Microsoft needed to "protect our core asset Windows -- the thing we get paid $'s for".

Another executive said browsers could "obsolete Windows," "commoditize the OS," and "make the [network computer] viable".

These e-mail messages show a side of Microsoft many don't see through the company's traditionally well-oiled PR machine: competitive, driven and focused on maintaining its stature in the marketplace. Although such blunt language may be commonplace at corporate strategy meetings, many Microsoft meetings are not held face to face but on e-mail. These discussions fly across the world on e-mail leaving cyber trails.

This culture allows for quick and thorough responses to issues, but it also creates an easily tracked communication "audit trail". Even face-to-face meetings stand exposed because subsequent e-mail describe the meetings, giving prosecutors leads.

For Microsoft, this documentation will make its antitrust defense more challenging than those ever faced by IBM, AT&T or Standard Oil. But this exposure exists in every major corporation in the world. Though some human resources departments have expressed their concerns about inappropriate humour and personal references in e-mail, few companies have prepared for the legal exposure that this communication medium provides.

Technical and business managers should heed this warning shot and be glad that it is not their organisation being scrutinised. Further, IT directors should prepare by providing detailed guidelines as to what is appropriate for this communication medium. Companies should not use e-mail as if it were hallway conversations. If your culture already condones this type of communication, you may want to determine appropriate e-mail retention policies.

I'll bet Microsoft officials wish they had put such policies in place several years ago. Maybe it could have avoided the upcoming millions of dollars in legal fees it will spend to explain what some seemingly innocent statement doesn't mean. Then again, Microsoft could just settle and get this issue off the radar screen. I'm sure e-mail on this very topic is flying around Microsoft.

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