Most people on the planet today use the Internet and other forms of digital communications. Many subscribe to what is called a "listserve" for professional and personal interest. Generally, the rules for using a listserve require you to subscribe, and each member will have a user name and password. ABI makes available a listserve that is designed for use by members of its various committees. Using the listserve, a member who has subscribed to a particular ABI committee listserve receives the "talk of the members" on subjects of interest and can post their comments or questions. Listservs are indeed beneficial when used properly and can provide a wealth of information—but at some risk.

The Risk

The following "warning" should get your attention:

Do not post anything in a listserve message that you would not want the world to see or that you would not want anyone to know came from you.

Please let that warning message marinate for some time, because they are not my words; that statement is taken directly from ABI's instructions on how to use the ABI listserve.

The above warning is standard boilerplate protection for members, groups and organizations using a listserve, but just remember: The devil is generally found in the details. Failure to adhere to that warning is at your peril. Perhaps the above warning message needs to be displayed at the start of every listserve message before posting a topic and upon sending and/or responding to the listserve.

Many organizations and groups that provide listserve services for members use Lyris.com. Groups often use the outside hosting services for a listserve from companies like Lyris for technical and economic reasons. ABI uses the Lyris Manager for the committee listserve functions. Lyris provides listserve hosting for a multitude of organizations and groups and may be as good as it gets.

Security, Privacy and the Privilege

Three words—security, privacy and privilege—come to mind when asked "why should a member/user of the ABI listserve be concerned about what is said in the group?" Remember that if you need security, privacy and privilege on a specific topic, perhaps you should not be using the listserve in the first place. Thus, use of the listserve, by definition (and including ABI's listserve), is not secure; nothing you post in the listserve is privileged, and you can forget about privacy, as it does not exist.

Another warning that needs to marinate is the idea that your username and password will protect you when using a listserve. That is an illusion, and no better than smoke and mirrors for your protection in a time when Internet crawlers and spiders can harvest each and every writing with specificity.

On the subject of security and privacy, see the e-newsletter article "Beyond Identity Theft & Bankruptcy Fraud" by Sandra R. Klein,² published in ABI's June 2005 Commercial Fraud Task Force Committee e-Newsletter and considered an absolute "must read" by this author. Please do promote ABI, and distribute that article to your colleagues. The article provides a wealth of information for bankruptcy professionals and states that "stealing or fraudulently using someone else's personal identifying information, which is commonly referred to as "identity theft," is one of the fastest-growing crimes in the country."

Job Opportunities

Wanted: Listserv Moderator—persons who will exercise due care and read proposed postings to the listserve for content and issues relating to privacy, privilege and appropriateness of the subject for the committee. Performing an excellent job is appreciated, and it is unlikely you will be replaced. In all seriousness, the moderator is the umpire, and nothing takes place until the moderator examines each post and then releases the post to the listserve members.

However, that does not mean the moderator will take the place of common sense of the members of the listserve. Be mindful when you enter the world of the listserve. It is suggested that members of ABI listserves read the rules before moving into the digital divide.

Protecting Digital Information

Sir Francis Bacon (1561-1626) said, "he who hath a secret to keep must first keep it secret." If Willie Sutton were alive today, he would have the latest laptop (Wi-Fi, PCMCIA hard drive, USB flash drive) and PDA when he went to work. Modern-day fraudsters are ready and able, and have easy access to your digital information (or know someone who does have access; how long have you been using the same password?). All of the above is what the digital fraudster expects.³

Why did the FBI stop using external e-mail last winter? Why would those who are informed on information security and protection of confidential and personal information say that the only method that exists today to help protect digital/electronic information is encryption?⁴ The answer to those questions is that the U.S. Secret Service, FBI and the CIA know what they are doing.⁵

Conclusion

Think before using any listserve, and limit what is in your signature line unless you want your e-mail address, phone numbers and other information harvested by those looking for you, including those digital crawlers and spiders.

While the bankruptcy courts have not yet been faced with what is destined to become an onslaught of e-discovery cases involving the sharing of privileged communications that can result in waiving the attorney-client privilege,⁶ using any listserve responsibly can perhaps limit that potential exposure.

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Footnotes

¹ Jack Seward is a consultant and digital forensic accounting technologist in New York City and veteran of many years of forensic accounting and electronic data sleuthing. He provides litigation support, including e-discovery for bankruptcy, insolvency, judgment enforcement and discovery and recovery using computer forensics. He may be contacted at [email protected] or (917) 450-9328, fax (212) 656-1486. Return to article

² Ms. Klein is a Bankruptcy Fraud Criminal Coordinator for the U.S. Trustee Program (USTP) and an adjunct professor of law at Loyola Law School in Los Angeles. Return to article

³ Seward, Jack, "Digital Stealth Secrets and the Act," LJN's The Corporate Compliance & Regulatory Newsletter, Law Journal Newsletters, March 2004 (http://www.ljnonline.com). Return to article

⁴ Seward, Jack, "Rejecting E-illiteracy and Adopting the Best Practices to Protect the Debtor's Confidential Information and Estate Asset," NABTalk® Journal of the National Association of Bankruptcy Trustees, Fall 2004; Seward, Jack, "Stop Your E-mail Risk—Now!," LJN's Legal Tech Newsletter, Law Journal Newsletters, July 2004 (http://www.ljnonline.com); Seward, Jack, "Solutions for Safer E-mail procedures," LJN's Legal Tech Newsletter, Law Journal Newsletters, August 2004 (http://www.ljnonline.com). Return to article

⁵ Just in case you are not completely convinced, see the discussion about "Operation Firewall" found in the article, "The Scary New World of Identity Theft," Newsweek, July 4, 2005. Return to article

⁶ Seward, Jack, "E-pinned and E-trapped in Technology," ABI Technology & Telecommunication Cases Committee Newsletter, ABI Committee News, Vol. 2, No. 2, June 2005. Return to article