End Notes

1. "'Sneaky' software may be watching you," CNN.com (February 19, 2002).

2. The bill would also have required service-oriented government agencies to use people instead of machines to answer telephones before 5:00 P.M. EST.

3. Again, this discussion applies primarily to the 85 percent of the country that uses a member of the Windows operating system family or its predecessor, MS-DOS.

4. The File Allocation Table is arguably the most important collection of data on a hard drive or storage disk. It contains the road map that allows the operating system to correctly read every other file on your disk. That's one of the reasons that viruses that target the File Allocation Table are so dangerous; if the File Allocation Table is destroyed, your hard drive becomes an undifferentiated mass of data that is essentially worthless.

5. There's no question that the surprising durability of computer files has been a hidden blessing for thousands of computer users. During my first week as an associate in a Burlington law firm, I earned serious brownie points by helping an older attorney recover a lengthy brief that he had accidentally deleted. Programmer Peter Norton, whose utility I used to recover the file, built a multimillion dollar software company largely on the strength of his disk editing and file recovery programs.

6. Dana Hawkins, "Who's Watching Now?," U.S. News & World Report (September 15, 1997).

7. The immense repetition required to comply with DOD specifications results from the fact that with the appropriate technology and a very high-tech lab, some data can still be recovered from drives or disks that have only been overwritten once or twice. Most experts seem to agree that the data on a drive or disk can only be truly destroyed by destroying the drive or disk itself. Bits are remarkably durable little critters.

8. 480 U.S. 709 (1987).

9. ____F.3d ____(2d Cir. 2001).

10. Kendra Mayfield, "Neither Rain nor Hail nor E-Mail," Wired.com (June 7, 2001). The postal service claims that e-mail is not a threat, because many of the messages sent by e-mail (jokes, chain letters, multilevel marketing schemes, and so on), would not have been sent by regular mail anyway. Nonetheless, current predictions are that first-class mail levels will fall an average of 2.5 percent per year from 2003 to 2008. Id. Clearly worried about the impact that e-mail is having on first-class mail, the postal service has floated various plans to charge for the delivery of secure e-mail. None of these plans has borne fruit, however, as the evolution of e-mail technology has vastly outstripped the postal service's ability to design and implement a viable system.

11. Voice mail raises some interesting questions, but is generally considered to fall under the definition of "wire communications," which makes it subject to antiwire-tapping laws.

12. While it is obviously illegal to destroy evidence of possible wrongdoing during litigation, companies are generally not penalized if potentially relevant evidence was destroyed during routine archive maintenance.

13. Ironically, Smyth and Pillsbury agreed to a settlement of Smyth's lawsuit against the company on the same day that the District Court dismissed the suit. The court's order, however, was entered before notice of the settlement was filed with the court.

14. "Nonvolatile" means that the memory retains the information stored in it even after the computer's power is turned off.

15. Figures regarding number of employees drawn from capsule corporate summaries prepared by and displayed on the Hoover's Online website (www.hooversonline.com).