As the political pundits often say, the biggest difference between Watergate and Whitewater was that Nixon put himself on tape.
Without the evidence of his own words, Nixon too could have denied knowing anything and wriggled his way through. Why he didn't turn off the recorder or destroy the tapes remains one of our great psychological mysteries.
As US Government lawyers mine through years of Microsoft's e-mails, technology pundits are now raising similar questions. And it isn't the first time old e-mail has surfaced in court.
It has been suggested that, as a precautionary measure, executives should regularly purge their own e-mail archives, just as they occasionally shred certain paper documents. But, however well-meaning, such thinking is generally misguided. First of all, it mostly won't work. Destroying e-mail is inherently a chasing-your-tail sort of exercise. Among the sender, the recipients, local storage, server storage, backups and printed versions, you will never know if every copy has been removed.
Perhaps more tellingly, whether you are talking about love letters, family quarrels or business dilemmas, many people feel an almost irresistible urge to hang onto controversial documents. Thus, the very e-mails you want to be rid of will likely prove the most protected. For instance, if you received a strongly worded message from Bill Gates, how would you know whether it was something you should warily delete or securely save? Would you send an e-mail and ask? And what about that e-mail?
Even if you could destroy every copy, large-scale purging probably isn't a very good idea. For most law-abiding businesses, complete e-mail archives will do much more good than harm. Just as companies benefit by keeping accurate human resources records, old e-mails can be extremely useful in defending against charges of discrimination, harassment, contract disputes, collusion and other potential liabilities. Once again, you might destroy your e-mail, but your future adversaries certainly won't.
It's easy to say that legally sensitive matters should be discussed only in private, face-to-face discussions. But there are times when that just isn't feasible. You could, of course, use voice mail, but you can never be sure that voice messages will not be secretly recorded. And there's probably nothing more dangerous than the illusion of conversational privacy. Given all that, when CEOs purge their e-mail files, they risk engaging in, at best, wishful thinking, or, at worst, unilateral disarmament.
Consequently, the only real solution is for executives to always be aware that writing e-mails isn't like having private conversations. This is really pretty basic.
In times past, whether you were talking about business memoranda or the letters of Henry James, everyone recognised that writing was a more thoughtful, deliberative and formal medium than speech. However, in our e-mail-centric industry, some of that important distinction has been blurred, with e-mails now used for both daily conversation and formal memorandum. That, of course, is the heart of the problem: E-mails are not speech; they are memos. Conversations vanish; e-mails do not.
You may not like the idea that any e-mail you have ever sent is probably stored out there somewhere, ready to resurface at anytime. But that's the way it is. If an e-mail can't stand legal scrutiny, don't send it. Who knows? It might even lead to more thoughtful and deliberative business communications and practices.
(Moschella is an author, independent consultant and weekly columnist for Computerworld. His e-mail address is email@example.com.)