Everything to Know About Email Retention Laws

An email retention policy is a formal guideline that dictates how long emails must be retained before they can be deleted. An organization may have multiple email retention policies — with varying retention periods and deletion protocols — depending on the needs of its different departments, the industry in which it operates, the laws and regulations it is subject to and so on.

Creating an email retention policy requires input from various teams across an organization, including the legal team, compliance team, IT department, human resources and the executive team. The process should be automated to ensure that emails are automatically captured, archived and, once the appropriate period of time has passed, permanently deleted.

Email retention policies serve an essential role in any organization, ensuring that they meet the email retention requirements of various laws and regulations. Other reasons for organizations to invest in email archiving tools and develop data retention policies include:

• Legal Compliance: As noted, organizations must adhere to various laws and regulations that mandate the retention of business communications and other data for specific periods of time. Failure to comply with these requirements can result in severe penalties, fines and even legal liability. Creating and implementing multiple email retention policies ensures that organizations meet these stringent requirements.
• Litigation and eDiscovery: In the event of litigation, organizations are often required to produce emails as part of the discovery process. The Federal Rules of Civil Procedure (FRCP) mandate that organizations preserve electronically stored information (ESI), including emails, in anticipation of potential litigation. An effective email retention policy ensures that relevant emails are systematically archived and easily retrievable, which is crucial for timely eDiscovery, and avoids accusations of spoliation.
• Risk Management: Emails often contain sensitive and confidential information. Without proper retention policies in place, organizations face the risk of unauthorized access, data breaches and loss of business-critical information. Email retention policies that include secure storage, regular audits and timely deletion mitigates these risks by ensuring that sensitive information is adequately protected and that outdated or unnecessary emails are disposed of.
• Operational Efficiency: Systematic retention policies help organizations manage the volume of emails on their servers, improving overall operational efficiency. By defining clear retention periods and implementing automated deletion processes, organizations can avoid the accumulation of unnecessary emails, which can clutter systems and slow down retrieval processes.
• Preservation of Institutional Knowledge: Emails often contain valuable information and insights that contribute to an organization’s institutional knowledge. By retaining these appropriately, organizations can preserve important communications that may be needed for future reference, training or decision-making.

To create email retention policies that actively support compliance and legal efforts, be sure to do the following:

• Understand Legal and Regulatory Requirements: Research which laws and regulations apply to your organization and carefully review their retention requirements. These will provide a solid foundation for your retention policies, as well as help you determine how many policies you’ll need to create. Pay close attention not only to the laws and regulations that affect your industry, but also your customers’ and partners’ industries, as you may need to create separate policies for archiving email communications with those organizations.
• Define Retention Periods: Establish clear retention periods for different types of emails based on their content, importance and which laws or regulations they’re subject to. For example, financial records, HR communications and client interactions are all subject to different requirements and should, therefore, have separate retention periods. Defining these periods not only supports compliance, but also efficient data storage and management.
• Develop a Classification System: Create a classification system to categorize emails based on their content and importance. Such a system will aid in the efficient storage, management and retrieval of emails, ensuring that important communications are easily accessible when needed.
• Automate Email Retention and Deletion: Utilize automated tools — such as email archiving software — to consistently enforce retention policies. Automation will enable your organization to systematically retain and delete emails according to predefined schedules, reducing the risk of human error, saving your organization valuable time and ensuring compliance with email retention laws and regulations.
• Develop a Legal Hold Policy: Certain situations, such as pending litigation, may require you to go against your established email retention policies and prevent emails from being automatically deleted from your archiving system. Implement a legal hold on any relevant emails to ensure that they are preserved and accessible during legal investigations or litigation.
• Secure the Appropriate Approvals: Before formally implementing any email retention, you need the approval of key stakeholders, including your executive, legal, compliance and IT teams. Having each of these stakeholders review and formally approve each new policy will make certain that it meets legal and regulatory requirements and is applied consistently across the organization.
• Maintain Comprehensive Documentation: Document all aspects of your email retention policies, including retention schedules, classification schemes and procedural guidelines. This documentation provides a reference for employees and serves as evidence of due diligence during audits and legal reviews.
• Regularly Review and Update Policies: Conduct periodic reviews and updates of existing policies to reflect changes in email retention laws, regulations and organizational needs. Regular audits and assessments can help you identify areas for improvement and ensure that your policies remain relevant and effective.

In the early days of email, there were few specific regulations that addressed email retention, as most legal frameworks — such as the Federal Records Act of 1950 and the Freedom of Information Act — were designed for physical documents. However, as email became ubiquitous in the workplace, the need for stronger guidelines became clear, with the Sarbanes-Oxley Act of 2002 (SOX) marking a pivotal moment in email retention law in the United States.

SOX established stringent requirements for the retention and management of corporate records, including emails, to prevent fraud and ensure transparency in financial reporting. It mandates that organizations must retain records for a period of anywhere from five years to permanently, depending on the nature of a record and its contents.

Following SOX, other regulations began to incorporate email retention requirements. In 2006, the Supreme Court amended the FRCP to address the discovery of ESI, including emails, in litigation. These rules emphasized the need for organizations to have proper email retention laws in place to facilitate the discovery process and prevent the spoliation of evidence.

Internationally, the General Data Protection Regulation (GDPR), implemented by the European Union (EU) in 2018, further expanded the scope of email retention laws by focusing on data protection and privacy. GDPR requires organizations to manage the personal data of residents of the EU and the greater European Economic Area — including the data contained in emails — with great care, emphasizing the rights of individuals to access and delete their data.

HISTORY OF EMAIL RETENTION LAWS & REGULATIONS

In the United States, email retention laws and regulations are governed by a complex interplay of federal, state and industry-specific mandates designed to ensure the proper management, preservation and destruction of electronic communications. The passing of SOX in 2002 set a legal precedent at the federal level, imposing strict record-keeping requirements on companies to prevent fraud and ensure accurate financial reporting. The amendment of the FRCP in 2006 followed suit, requiring organizations to preserve any electronic communications relevant to litigation and prevent spoliation of evidence.

Industry-specific regulations further shaped email retention practices in the U.S. The Health Insurance Portability and Accountability Act (HIPAA) mandates that healthcare providers retain certain electronic communications to protect patient privacy, while the Gramm-Leach-Bliley Act (GLBA) requires financial institutions to retain email records to safeguard consumers’ financial information. Various industry-specific regulatory agencies, such as the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA), also play an integral role in influencing policy pertaining to email retention.

State-specific laws add another layer of complexity. For example, California’s Consumer Privacy Act (CCPA) enhances data privacy rights for residents, indirectly influencing email retention by requiring businesses to manage personal data responsibly and enabling consumers to request deletion of their information.

In New York, the SHIELD Act imposes security requirements on organizations that handle the private information of New York residents, which affects how emails containing such data are stored and protected. Massachusetts has its own set of stringent data security regulations that require organizations to maintain comprehensive information security programs, which impacts email retention policies. And, of course, there are numerous state-specific Freedom of Information laws — each with varying email retention requirements — to which organizations must adhere.

Overall, email retention for organizations that operate in the U.S. is shaped by a mosaic of regulations aimed at ensuring legal compliance, protecting sensitive information and supporting business integrity. Organizations must navigate these diverse requirements, tailoring their email retention policies to align with federal mandates, state-specific laws and industry-specific standards.

Much like in the U.S., international email retention laws and regulations present a complex and varied landscape, reflecting different approaches to data protection and privacy across global regions. The GDPR is one of the most comprehensive and influential frameworks, setting strict requirements for the retention, processing and deletion of personal information, including that contained in emails. GDPR mandates that personal data be retained only as long as necessary for its intended purpose and that organizations provide individuals with the right to access, rectify and request the deletion of their data.

In Canada, the Personal Information Protection and Electronic Documents Act (PIPEDA) governs the collection, use and disclosure of personal information in the private sector and requires organizations to retain personal information only as long as necessary for its intended purpose. Similarly, Australia’s Privacy Act and accompanying Australian Privacy Principles (APPs) set forth obligations for organizations to manage personal information responsibly, including requirements for the secure storage and timely deletion of emails containing personal data.

Asian countries also have robust data protection laws. Japan’s Act on the Protection of Personal Information (APPI) emphasizes the importance of limiting retention periods to what is necessary for business purposes and implementing security measures to protect personal data. South Korea’s Personal Information Protection Act (PIPA) is one the most stringent in the region, requiring explicit consent for data collection and detailed records of data processing activities, including email retention protocols. Singapore’s Personal Data Protection Act (PDPA) similarly stresses the need for appropriate retention and disposal policies for personal data.

In Latin America, countries such as Brazil have enacted comprehensive data protection laws, such as the General Data Protection Law (LGPD), which mirrors many aspects of GDPR, including strict rules on data retention and the rights of individuals to access and delete their data.

These regulations reflect a growing global consensus on the importance of data protection and the need for organizations to implement robust email retention policies. Keeping up with new and changing regulatory requirements and legal standards and maintaining compliance across different jurisdictions requires organizations to be diligent and adaptable in their retention practices.

In addition to domestic and international email retention laws, many organizations are also subject to industry-specific regulations. HIPAA and the accompanying Health Information Technology for Economic and Clinical Health (HITECH) Act, which was passed in 2009, are perhaps the most famous example. HIPAA and HITECH mandate that healthcare providers and related entities must retain documentation of their security policies and procedures, including email retention policies, for no less than six years.

Financial institutions also operate in a heavily regulated environment, subject to GLBA and the Dodd-Frank Wall Street Reform and Consumer Protection Act. Both laws require the retention of emails related to financial transactions, customer communications and compliance activities. In the securities sector, the SEC and FINRA impose rigorous email retention requirements on broker-dealers and investment advisors, including the retention of all business-related communications for three to six years, with the first two years being easily accessible for auditing purposes.

Looking to the public sector, the Federal Records Act mandates the creation and preservation of government records, including emails, to document federal policies and transactions. State and local governments also maintain their own record retention laws, often mirroring federal requirements, to ensure proper management of public records. Any educational institution ranging from K–12 to higher education that is funded under a program managed by the U.S. Department of Education must comply with the Family Educational Rights and Privacy Act (FERPA). While FERPA does not specify a time period for retaining education records, it stipulates that schools must produce those records upon request, thereby requiring them to maintain those records for an extended period of time.

This is just a small sampling of the legal and regulatory obligations organizations across various industries face, further cementing the need for tailored retention policies that address specific requirements.

INDUSTRY-SPECIFIC EMAIL RETENTION LAWS & REGULATIONS

Violations of email retention laws and regulations can lead to significant penalties, including fines and other legal repercussions. Additionally, improper ESI management can result in a finding of a spoliation of evidence by a court, leading to sanctions such as adverse inference jury instructions, summary judgment and monetary fines.

Some notable, real-world examples of penalties imposed in response to inadequate email retention practices include:

• In the 2017 case of Waymo v. Uber, Uber was accused of deleting emails and other electronic communications to cover up the misappropriation of trade secrets and intellectual property theft. Uber ultimately paid a $4.5 million settlement to a former employee who accused the company of using ephemeral messaging services to avoid a paper trail.
• The Federal Trade Commission (FTC) imposed a $5 billion penalty on Facebook in 2019 for privacy violations, in part due to inadequate retention and mishandling of user data, including emails and other electronic communications. At the time, the historic penalty was the largest ever imposed on any company for violating consumers’ privacy.
• In 2020, the Officer of the Comptroller of the Currency (OCC) fined Morgan Stanley $60 million for failing to adequately oversee the decommissioning of servers and the retention of customer data, including emails.

Complying with email retention laws and regulations is not only a legal obligation, but also a crucial component of effective data management and risk mitigation.

For organizations seeking a reliable solution to their email retention needs, Intradyn’s email archiving platform enables you to automatically capture, save and index all email communications. With scalable storage, multiple access methods, robust security, built-in eDiscovery tools and advanced search functionality, Intradyn simplifies compliance with complex retention requirements, offering your organization much-needed peace of mind.

Q: Who is responsible for email retention?

A: There are multiple departments within any organization that play a critical role in ensuring compliance with email retention laws and regulations, including (but not limited to): the legal team, the IT department, the compliance team, the records management department, human resources and the executive team.

Q: What are the penalties for non-compliance with email retention laws?

A: Penalties for non-compliance can be severe and may include substantial fines, legal sanctions, criminal penalties and reputational damage. These penalties vary by industry, regulation and the severity of the infraction.

Q: What are best practices for securing archived emails?

A: To ensure that your email archives remain secure, use encryption to protect data in transit and at rest, implement access controls to restrict who can view or modify emails and conduct regular security audits. The right email archiving platform should also include built-in security capabilities to provide tamper-proof storage.

Q: How often should we review and update our email retention policies?

A: It’s important to review and update email retention policies on a regular basis — at least annually or whenever there are significant changes in laws or organizational policies. These regular reviews will ensure that your policies remain current and are effective in addressing compliance requirements and operational needs. Be sure to engage your organization’s legal and compliance teams in the review process to identify any necessary adjustments.

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