The complete guide to email disclaimer laws in the United States
20 April 2022
In today's digital age, email has become an indispensable tool for communication, especially for professional use. However, with the use of email and other digital tools becoming more widespread, there comes concerns regarding privacy, security, and legal implications. To address these concerns, various laws and regulations have been put in place, requiring organizations to include email disclaimers to protect themselves and their recipients.
In this article, we’ll explore email disclaimer law as well as email footer legal requirements in the United States.
Federal Information Security Management Act (FISMA)
The Federal Information Security Management Act (FISMA) puts the responsibility on agencies to ensure the security of data within the different branches of the U.S. government (federal, state and local).
The Act defines a framework to protect government information, operations and assets against natural or man-made threats. Every government agency is required to conduct annual reviews of information security programs, with the intent of keeping risks at or below specified levels in a cost-effective and efficient manner.
As part of FISMA compliance, agencies and departments must implement ways to track the content of all outgoing emails. This includes the implementation of an authorized U.S. email disclaimer on all mail.
FISMA states that for regulatory compliance, an appropriate U.S. authorized email disclaimer needs to be included in all email communications. This is because the act covers the security of data used by federal and state governments.
Email disclaimer use then filters down into different industries where there are different requirements.
Federal Rules of Civil Procedure (FRCP)
The Federal Rules of Civil Procedure (FRCP) are regulations that specify procedures for civil legal suits within United States Federal Court system. An organization must know:
Where their data is
How to retrieve it
How to meet data requests
What data won’t be subject to search
A revision to the Rules on December 1, 2006 was established for companies to make provisions for the handling of electronic records. It was also to accommodate electronic discovery (using data for civil legal actions).
FRCP mandates that a company has to use an appropriate email disclaimer clearly stating that the content of the email will not be used to avoid the loss of a lawsuit when specific data is requested. This came about in 2006 when revisions to the law were made regarding how electronic data is exchanged and protected.
Freedom of Information Act (FOIA)
The Freedom of Information Act is a federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government.
Sending FOIA details through email carries the risk that the contents of the information might be wrong, or that the intended recipient might be addressed incorrectly. As email has become so prevalent for interdepartmental communications, security of communications has become a serious concern. U.S. email disclaimer law helps to mitigate some damages or other liability issues.
In order to comply with the FOIA, an email disclaimer is essential. This then informs a mail recipient that the email may contain sensitive information.
Gramm-Leach-Bliley Act (GLBA)
The Gramm-Leach-Bliley Act applies to “financial institutions”. These are businesses that offer financial products or services to individuals to be used primarily for personal, family, or household purposes. Financial institutions like banks, securities firms and insurance companies are covered by the SEC (Securities and Exchange Commission). Businesses that provide financial products and services fall under the jurisdiction of the FTC (Federal Trade Commission) for the purposes of enforcing GLB.
Violation of the GLBA Act may result in a civil action brought by the U.S. Attorney General. The penalties include up to $100,000 for each violation. In addition, “the officers and directors of the financial institution shall be subject to, and shall be personally liable for, a civil penalty of not more than $10,000 for each such violation”.
Criminal penalties may include up to 5 years in prison. The GLBA Act has been cited by many as the cause of the 2007 subprime mortgage financial crisis.
All American financial organizations must attach an email disclaimer to their messages to avoid any confidentiality breaches. However, an email disclaimer doesn't make the content of an email 100% confidential. Therefore, it’s used to warn customers about transmitting sensitive data like account details.
Health Insurance Portability & Accountability Act (HIPAA)
The Health Insurance Portability and Accountability Act (HIPAA) offers protection for millions of American workers by improving portability and continuity of health insurance coverage. There are two sections to the Act. HIPAA Title I deals with protecting health insurance coverage for people who lose or change jobs. HIPAA Title II includes an administrative simplification section which deals with the standardization of healthcare-related information systems.
Information must be stored in robust data centers that provide minimum guaranteed uptime and very high security. Anyone who obtains and discloses information with the intent to sell, transfer or use it for commercial gain or malicious harm can face penalties of up to $250K in fines and 10 years in jail.
This act strongly recommends that all U.S. healthcare organizations use email disclaimers to highlight patient confidentiality in all communications.
Now, an email disclaimer is only meant to be used to inform patients; it’s not legally binding. It doesn’t necessarily represent full compliance with HIPAA law. Nonetheless, an email disclaimer is designed to ensure that:
Patients are aware that the email they’re receiving is not 100% secure
The content placed within the message is of a confidential nature
They should pass the email on to the relevant person if they’re not the correct recipient
The Public Information Act, Texas State
The Texas Public Information Act is a series of laws incorporated into the Texas Governmental Code. It was set up to guarantee an individual’s unrestricted access to public records kept by government agencies. Certain exceptions may apply to the disclosure of the information.
Governmental bodies need to promptly release requested information that’s not confidential by law. This can either be a constitutional, statutory, judicial decision, or information for which an exception to disclosure hasn’t been sought.
Like FISMA, the Public Information Act strongly recommends the use of an email disclaimer. This is to indicate that the data within the message must remain confidential. This helps to protect an organization from being liable for any damages.
California Consumer Privacy Act (CCPA)
The California Consumer Privacy Act is the first comprehensive privacy law in the United States. It was put into action on January 1, 2020. This statute enhances privacy rights and consumer protection for all residents of the State of California. It works in a very similar manner to GDPR in the European Union.
This landmark law offers new privacy rights for California consumers including:
The right to know about the personal information a business collects about them and how it is used and shared
The right to delete personal information collected from them
The right to opt-out of the sale of their personal information
The right to non-discrimination for exercising their CCPA rights
As with GDPR, there are no set rules when it comes to using email disclaimers. However, including a specific CCPA disclaimer helps to showcase your compliance with this regulation. Additionally, including unsubscribe links where appropriate, allows recipients to easily opt out of receiving commercial email communications from your organization.
