Electronic Communication - Legal and Practical Issues to Consider in the Information Age

by Charles R. Gregg and Catherine Hansen-Stamp

Introduction

Camps and outdoor programs are now intimately familiar with the world-wide Web. Your organization undoubtedly has a Web site, reaching out to anyone around the world who has access to the Internet. The Web has catapulted your business into the spotlight, in a low cost and accessible way. You and your staff have integrated electronic communication into your business, using e-mail and other electronic communication to conduct business and communicate with clients, other camps, the American Camp Association (ACA), and other individuals or entities that relate to your business.

However, with the onset of this information explosion come many questions and issues—legal and practical. How accurate is the “message” your camp relays through your Web site and electronic communication? What is the effect of an “electronic signature” when you are dealing with parents and their minor children many miles away? What are a camp’s obligations when it comes to electronic communication sent and received by campers while at camp or in a camp-sponsored chat room or after the camp session? We will address these and other issues as we explore the legal and practical ramifications associated with use of the Web.1

Precamp

The flow of information between a camp and campers and their families is essential to a camp’s operation. This information exchange includes information provided by the camp to camp families and information received by the camp from camp families. The Web provides camps with a convenient method to engage in this two-way communication. Words, photos, video clips, and other graphic images can project the camp’s image and personality, describe its mission and activities, and serve as an effective and inexpensive marketing tool. In addition, online registration information, including health information and participant agreements can be available online, which allows camper families to respond electronically, without licking a stamp!

The practical value of this electronic information exchange is clear. Search engines and links from and to other Web sites can cast a broad net, allowing the camp’s message to be spread quickly and efficiently to the market. Electronic retrieval of information can allow the camp to collect vital information from participants—obtaining registration and health information, payment, participant agreements, and corresponding electronic signatures on these “documents,” with the appropriate software in place.

The legal implications of this electronic information exchange are more complex. We will examine two areas in this precamp exchange of information:

Marketing information provided to campersand the public
Your information, presented electronically or otherwise to the outside world, is a powerful tool. However, in the push to spread a positive marketing message, it is important to keep in mind the value of an accurate and balanced message.

A camp that presents a fair and accurate message to its camper families will maximize the opportunity to educate and prepare them for the camp experience, and avoid surprises, disappointment, and unfulfilled expectations. If incidents occur, families who are psychologically prepared for the experience, and have been presented with a fair picture of the experience, may be less likely to be critical of the camp or file a lawsuit.

Alternatively, electronic or other communication that contains exaggeration or guaranties, or inaccurate, unbalanced, or inconsistent information does not serve camper families, and can be extremely damaging to a camp, particularly in the event of a camper injury or loss. Bottom line, representations and assurances in electronic form are as binding on a camp, and as likely to produce trouble—legal or otherwise—as those contained in written letters or brochures.

Information provided to and collected from camper families
Using the Web to collect information from your camper families is a valuable tool. Camps can provide registration information, including terms of enrollment, health information, questionnaires, and participant agreements on their Web site. Camps can collect payment and information without asking families to mail in a paper copy. Everyone is familiar with “clicking yes” to contract terms involving the purchase of products on the Web.

Electronic delivery and collection of information can allow camps a convenient and efficient way to deal with this traditionally paper-driven process and increase camps’ ability to provide a quality experience. With appropriate software, electronically signed or delivered documents can be electronically stored, or relayed to appropriate staff, easily and effectively

However, the legal issues related to collection of electronic information are more complex. The camp probably intends that important portions of this information exchange will serve as binding contracts. For example, the registration information may contain terms of agreement, including camp policy on refunds, cancellation, and registration. Health information and participant agreements may require camper or camper-parent acknowledgment or agreement. These documents may require signatures from campers and from parent/s of any minor campers.

The Federal E-Sign Act2 was created to legitimize electronic contracts. The Act provides (among other things) that a contract cannot be found unenforceable simply because it is in electronic form. Of course, to be considered binding or enforceable, the contract, electronic or otherwise, must meet other basic contract requirements.

An important requirement of a legally binding contract is that there be successful contract formation—that is, there must be an offer by the camp and a valid acceptance or assent by the signing party. Developing case law in various jurisdictions reflects that electronic acceptance by the signer is a critical issue. Among other things, the individual clicking “yes” to contract terms should be provided with clear and unambiguous instructions on the nature of the contract and the process for acceptance of its terms. The signer should clearly understand that he/she is entering into a legally binding contract. The terms of the contract should be available to the signer on the Web, in conjunction with acceptance of those terms.

Another important issue includes contract authentication—that is, verification that the individual electronically signing the document is who they purport to be. This is critical in the event the camp needs to rely on the electronic document to enforce its contractual rights. Consider the issues with minors, those who are not legally competent to enter into a legally binding contract3. Although there may be some value in having the minor sign certain documents, the parent/s of the minor are usually required to sign documents such as registration, health forms, and participant agreements. Even if the camper is an adult, authentication is important in the electronic context. Important safeguards can include seeking personal information from the signer, and seeking e-mail verification from the signer, following the camp’s receipt of electronically signed contracts.

Accurate information collection and record keeping is yet another issue. A camp’s software or data base should record accurate and important information in the electronic collection process, and have adequate storage and retrieval capabilities. In the case of binding contracts, critical information includes the who, when, and what: 1) who signed the contract (contact information); 2) time and date of the electronic signature; and 3) the document or version of the document entered into.

Consider specific issues related to individual documents. For example, in addition to meeting the requirements for a binding contract, documents containing release or other liability shifting (exculpatory) language are subject to a second level of scrutiny by the courts. In most states, these documents are enforced only on a case-by-case basis and only if certain criteria are met. Consider too, that state law varies on whether a parent can legally release their minor child’s right to sue in the event of injury or incident at the camp. Thus, the presentation of, and content of this type of document, whether electronic or paper, must address these and any additional jurisdiction specific issues.

In light of the particular importance and sensitivity of these participant agreements, many camps may still choose to collect signed, written documents, rather than relying on electronic collection. A transition may be to offer participants the option of completing a written form, or an online electronic version.

Although some of the issues camps face in addressing the enforceability of binding electronic contracts are similar to those affecting more traditional forms of contracts, the Web presents a new twist regarding contract enforceability. Camps should work with their legal counsel and Web designer or computer consultant to assess legal and technological issues, as they consider increasing online information exchange.

During Camp

The matter of access to the Internet, entitlement to Internet messages received by the camp, and other electronic matters are best handled by establishing and publishing the camp’s requirements and expectations early in the relationship with the camp family.

The camp may set the terms of a camper’s admission to the camp, regulate what the camper brings to camp and how the camper behaves while at camp, and dismiss a camper for a violation of camp rules. Accordingly, the camp can and should make clear, including the consequences of violations, its policies regarding digital cameras (including cell phones with that capability), access to and use of the Internet, and entitlement to camper messages received by the camp.

We have written before about camp as an opportunity for growth, experimentation, and development.4 Internet issues will force a thoughtful consideration of where a line might be drawn between positive and negative experimentation. Internet opportunities abound which challenge camper privacy and other issues. The camp must be aware of these issues and address them in a manner that is consistent with the camp’s culture and values. The issue may be an Ipod® containing music which some might regard as suggestive and sexually provocative. It may be e-mails from parents or friends, received directly by the camper or by a camp’s computer, Blackberry® or similar device, which includes material that camp management considers inappropriate for the camper. These and other Internet issues can create significant legal ramifications for the camp community. A camp’s failure to proactively address these issues may, following an incident, result in anger, confusion, and even claims of a violation of some legal duty, including, for example, illegal interception of communications intended for the camper, invasion of privacy or intentional or negligent infliction of emotional distress.

Each camp should have its own policies regarding camper use of electronic and wireless devices. Some camps prohibit such devices (including cameras, except perhaps an “instant camera” available at the camp store, which produces hard copy film only). However, a camp that allows campers to bring equipment capable of making and transmitting photographs, may, preferably with proper prior announcement, confiscate that property until the end of camp if it finds that it is being abused. Camps may have a camp Internet café from which communications can be sent and received. Rules governing such a place, and the messages sent and received, must be clear and strictly enforced.

The camp cannot afford to appear to be a partner or collaborator with a camper or staff member who sends, off campus, electronically or otherwise, inappropriate messages or photo images of other campers. In addition to other clear rules or policies, the camper agreement may include a statement that the camp is not responsible for publication of photos or other images taken by campers, without its consent and authority.

A camp may distribute none, all, some, or only filtered e-mails that come into the camp computer intended for a camper. The camp, working with the variety of special service providers and software programs (eCamp, etc.) may negotiate methods for screening and rejecting unwarranted material including a message of receipt and rejection. The camp office may receive all e-mails, review them, and select what e-mails will be sent to the camper. If the camp distributes e-mails, it should make it clear that their confidentiality cannot be guaranteed, thereby preserving an announced opportunity to screen. The camp office may refuse to receive and distribute any e-mails, or accept and deliver e-mails only from specified persons.

Attorney Jason A. McNiel has recently addressed for ACA, the legality of a camp’s interception of e-mails directed to a camper while at camp. Citing federal law (18 U.S.C.A. 2511), Mr. McNiel opines that if the computer that receives the e-mail is the property of the camp, the camp may do what it chooses with those e-mails. Mail is not being intercepted illegally, and privacy rights are not being violated.

Again, the camp’s policies and practices in these areas should be made clear to the camp families, in advance of the camper’s arriving (or packing), to avoid surprises, disappointments, or later charges by a parent that the camp is interfering with an intended communication, privacy issues, or whatever.

To what extent camp parents are advised of such matters, we will leave to the camp. But the camp is clearly within its legal rights to set the terms of admission and participation, including confiscation of offending property.

Post Camp

Issues with the Internet continue after camp closes. We all have heard stories of chat rooms in which camp experiences are shared and the camp community is extended, perhaps with expectations for the following summer. While such chat rooms can be productive in strengthening camp relationships, including staff to students, some of these relationships and communications may not serve the camp or campers well. In addition, comments may be made at these sites about camp experiences which, accurate or not, may be detrimental to the image the camp wishes to project. The camp must not give the appearance of endorsing or promoting communications in such chat rooms; yet it is next to impossible to monitor or control communications on the variety of outside chat rooms that exist. However, the camp, on its own Web site or in other materials, can announce expectations for transactions in a chat room controlled by the camp. It can also address issues about the use of other Internet chat rooms (MySpace, etc.) and some of the problems associated with extending the camp’s relationships beyond the controlled environment of the campus. Even before camp begins, the camp should disclaim and be very clear about its lack of responsibility for—in fact its lack of ability to—monitor activities on a site other than a dedicated chat room which it creates.

A camp’s “captive” private chat room site should state clearly to campers and their families that the purpose of the chat room is to provide a forum for campers and staff to talk to one another, and explain that the camp itself has no responsibility to monitor the site or to act upon matters that might be discussed there. If the camp does choose to monitor or control the site it should describe the limits of its responsibilities, and penalties for mis-use. A camp does not want to appear to be a sponsor of a communication that may offer inaccurate, offensive, or illegal material. The camp can be held responsible for what occurs in these chat rooms if the camp might fairly be regarded as endorsing, promoting, or taking on the responsibility for what is said and done.
At a private site it is quite easy for the camp to provide a disclaimer, even a “pop-up,” that will announce, periodically, the limits of the camp’s responsibility and its expectations for what is to take place. The chat room could be passworded to limit access to those people who have received sufficient warnings and a declaration of expectations. A private chat room may be an attractive alternative to the independent free-wheeling conversations that might take place otherwise. However, the camp surely will understand that regardless of its best intentions in sponsoring or offering a private chat room, some of the campers will be attracted to other offerings on the Internet.
Some overly aggressive campers or staff members may attempt to draw attention to their Internet offerings by including the camp logo or trademark patched in from the camp’s Web site or elsewhere. While this may be well intentioned, such use might cause parties to the communication to believe that the camp has a level of involvement in the communication that it does not have. Unauthorized use of the camp’s trademarks, including its logo, is illegal. An explanation and warning about such use can be included in a statement or disclaimer on the camp’s Web site.
American Camp Association (ACA) publications might be supplemented by individual camp offerings, informing parents about sexual predators on the Internet and other dangers of unsupervised Internet conversations. ACA and other organizations have provided important guidance in this regard. See, for example, www.wiredsafety.org. The ACA has published articles on this topic, discussing the social and other ramifications of Internet use. See “Their Space or Yours? Internet Issues Come to Camp,” by Stephen G. Wallace, M.S. Ed., March 2006 Inside ACA, www.ACAcamps.org/inside; “Cyber-Shadows, Protecting Teens From the Dark Side of the Online World,” by Stephen G. Wallace, M.S. Ed., www.CampParents.org. Recommendations made by the author may not be suitable for all camps, including the prospect of visiting Web sites and monitoring compliance. Undertaking to do so, and potentially publishing that intention, may create certain expectations that will be difficult to fulfill.

Conclusion

Running a quality program includes thinking ahead on developing issues, and none are developing more quickly than cyber technology. Address these issues thoughtfully—precamp, during camp, and post camp. Understand the issues, and work with professionals—legal counsel, computer consultant, and staff—and camp families to take advantage of opportunities and address and minimize problems presented in our electronic age.

©Charles R. Gregg and Catherine Hansen-Stamp

*This article contains general information only and is not intended to provide specific legal advice. Camps should consult with a licensed attorney, experienced in recreation and adventure law, regarding application of state and federal laws and issues specific to their business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail rgregg@gregglaw.net; www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

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