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Google inc. announced plans last week to roll out a new instant messaging program designed to turn the world into “one big instant messaging network”—a development that may leave employers wondering how responsible they are for the millions of instant messages that cross their servers. The message from lawyers: Start worrying. “It’s a growing trend and companies need to pay attention to it and develop a policy about it,” notes Ken Shear, an attorney and senior vice president with SPI Litigation Direct, a risk management and electronic-discovery consultant to law firms and companies. In some ways, instant messaging (IM) presents many of the same security and privacy issues as other modes of technology, like e-mail or blogging, but many employers may not even realize the need to address it. For example, instant messaging is very popular within the financial services arena, where analysts want to communicate in real time. But a broker is not allowed to have unrecorded conversations with a customer, notes Shear, adding that many IM platforms do not provide a retrievable record. “You can try to control it through policy,” Shear said. “Or you can lock down the technology so people can’t do it.” But a better way might be to bring instant messaging in-house to an internal server where the company can monitor it, and encourage employees to use it in ways that benefit the company, Shear said. IM policies needed Lawyers stress the need to have policies in place that employees understand and that are enforced. “What we do know is that the workplace is changing dramatically. Lawyers and companies need to think about their risk management policies,” notes Gerard M. Stegmaier, a partner in the Reston, Va., office of Palo Alto, Calif.-based Wilson Sonsini Goodrich & Rosati who practices privacy and data protection law and teaches courses in those areas at George Mason University School of Law. Companies that know their resources are being used to transmit illegal information, whether through IMs or other forms of communication, have a responsibility to act on it, Stegmaier said. Unlike e-mail, IMs happen in real time and often involve a group discussion. IM technology can also include voice and video capabilities that allow users to send pictures back and forth. “The reason instant messaging is a hot topic is because there has been little guidance from the bench and the technology is changing so quickly that corporate America has not really gotten its arms around what the risk is,” said Michele Lange, a staff attorney with Kroll Ontrack. According to RadiCati, a technology market research firm based in Palo Alto, there will be 867 million users of instant messaging worldwide by the end of this year, and about 13.9 billion messages are sent each day.

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