Monday, October 11, 2004

Microsoft and the fifth amendment

The Register has a long article (at least it's long by "El Reg" standards) called "How key Microsoft legal emails 'autodestruct' " which is based, in part, on another piece by R. X. Cringely all of which go into extraordinary detail purporting to show that Microsoft disposed of potentially incriminating emails in not only the suite filed by Burst, but also when facing the Department of Justice's anti-trust action.

The constitutional aspects of all this trouble me.

If I am charged with a crime, I cannot be forced to testify against myself. If I am the defendant in a civil suit, I cannot be compelled to give evidence favoring the plaintiff. Documents totally under my control, not shared with anyone else cannot be used against me, either. A corporation is a "person" before the law. The rights of that corporate person should be no less than those afforded each individual. Fishing expeditions for wholly internal memoranda, documents and emails should be thrown out summarily on constitutional grounds. There are simply no concerns which can override a constitutional protection.

Too many lawyers (and that includes, especially, district attorneys and attorneys-general) prefer convicting a person with their own words - no matter how obtained. It's a lot easier (and surer) than having to actually uncover evidence and witnesses. But simply because it is easier - and simply because it's "in a good cause" - is no excuse for running roughshod over the constitution.

If a corporation is a "person" before the law, then if the corporate person commits a crime, do you send the whole corporation to jail? I don't think so. While I'll grant you that the law's insistence on personhood forces the fiction that you have to treat a corporation as a person for the purposes of commercial contracts and to enter into binding agreements, this should not apply to criminal activities nor to criminal sanctions.

Personal responsibility is, for me, at the core of any system of justice, and a corporate entity BY DEFINITION can not accept personal responsibility.

Microsoft didn't create or dispose of incriminating e-mails. Individuals generated them and allegedgly disposed of them. I'm guessing that Microsoft has a security and privacy policy in place telling all employees that the use of the company e-mail system must follow guidelines and that it is not a personal communications device, thus obviating any expectation of privacy. That makes those communications reasonable targets for discovery, without extraordinary concerns.

Microsoft does have a right to protect itself from unreasonable disclosure of intellectual property or proprietary materials, but that is why the courts can seal records or appoint special masters.

Be careful about the road you follow with shielding individuals from scrutiny based on their corporate relationships. One fork down that road leads to, "I was just following orders" and we don't want to go there.
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