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[second of a series discussing privacy rights in the digital age]
With the rise of technology there arose a fear of surveillance. However,
George Orwell's 1984 passed us by without noticeable big brother
control, and the national concern over espionage diminished with the
demise of the U.S.S.R.
These past threats were concerns over the use of technology by
governments that had sufficient resources to use the technology for
sinister purposes. The new threat is not technology in the hands of
government, it is technology alone. What once required massive manpower,
now requires merely a personal computer. Technology has made the power
to monitor others widely available, whether to governments, private
enterprise or individuals. This article discusses some of the laws
applicable to the monitoring of employees in the private workplace.
An employee, by the very nature of the employment relationship, must be
subject to some level of monitoring by the employer. However, this
monitoring has limits. Courts have held that it is a tortuous invasion
of privacy for an employer to monitor employee telephone conversions.
Similarly, mail carried through the U.S. postal service is granted a
high level of protection.
However, much employee communication now takes place over private and
public networks via e-mail, or voice mail. These forms of communication
are very different from telephone calls and letters. For example, after
transmission and receipt, these communications are stored for an
indefinite period of time on equipment under the exclusive control of
the employer. Additionally, these communications can be examined without
the knowledge of the communicators. As is often the case, the law has
difficulty keeping pace with the issues raised by fast changing
Electronic Communications Privacy Act -
In the federal sphere, only the Electronic Communications Privacy Act of
1986 (ECPA) directly prohibits the interception of e-mail transmissions.
The ECPA prohibits the interception by (1) unauthorized individuals or
(2) individuals working for a government entity, acting without a proper
warrant. The ECPA is mostly concerned with the unauthorized access by
employees or corporate competitors trying to find out valuable
information. However, while there is no specific prohibition in the ECPA
for an employer to monitor the e-mail of employees, the ECPA does not
specifically exempt employers.
The ECPA has several exceptions to the application of the prohibition of
interception of electronic communications. The three most relevant to
the workplace are (1) where one party consents, (2) where the provider
of the communication service can monitor communications, and (3) where
the monitoring is done in the ordinary course of business.
The first exception, consent, can be implied or actual. Several courts
have placed a fairly high standard for establishing implied consent. For
example one court held that "knowledge of the capability of monitoring
alone cannot be considered implied consent." Accordingly, for an
employer to ensure the presence of actual consent, it should prepare,
with advice of counsel, a carefully worded e-mail Policy Statement which
explains the scope of employer monitoring. This Policy Statement should
be signed by the employees. One example of how this Policy Statement
needs to be carefully written is that if it states that personal
communications will be monitored only to determine whether there is
business content in the communications, then this would probably not
amount to consent to review the full text of personal communications.
Additionally, notice that communications might be monitored may have a
significantly different legal affect than a notice stating that
communications will be monitored.
The second exemption is that the ECPA exempts from liability the person
or entity providing the communication service. Where this service is
provided by the employer, the ECPA has been interpreted as permitting
the employers broad discretion to read and disclose the contents of e-
mail communications, without the employee's consent. However, employers
should not rely on this exception, because it might not apply in all
cases, such as to incoming (as opposed to internal e-mail) if the e-mail
service is provided by a common carrier (e.g., America Online or MCI
mail, which are not provided by the employer).
Under the third exception, courts will analyze whether the content of
the interception was business or personal and allow the interception of
only business-content communications.
State laws -
State tort laws are often viewed as the primary sources of protection
for privacy of electronic communications. The most common tort that
would apply is the tort of invasion of privacy. This tort occurs where
"one who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person."
This tort does not require that personal information be actually
acquired, disclosed or used. However, the intrusion must be intentional
and highly offensive to a reasonable person. Additionally, there must be
a reasonable expectation of privacy by the employee.
Employees often believe that their communications are private because
they have a password which they can select and change independently or
because they are communicating through outside common carriers. Cases
have often turned upon whether this belief was reasonable given the fact
that the employer had the ability all along to access the files, though
the employees were not aware of this. In determining the outcome, courts
will weigh the reasonableness of the employee's expectation of privacy
against the business interest of the employer in monitoring the
communication. However, it is important to emphasize that in the final
analysis courts have traditionally held that legitimate business
interests permit employers to intercept communications.
Additionally, state constitutions might provide some protection. A
number of state constitutions provide a specific right of privacy. But,
only California has specifically determined that its constitution
provides a cause of action against nongovernmental entities. However,
even in California, the courts will give significant weight to the
business interests of the employer.
As discussed, much of the law of privacy in the workplace turns on the
reasonable expectation of privacy. When evaluating different situations,
it is important to keep in mind that the law in this area is a moving
target, as recently expressed by Professor David Post of Georgetown
University Law Center (in The American Lawyer, October 1995) "until we
have all spent more time in this new electronic environment, who can say
what our expectations really are --let alone whether they are
In the workplace, federal and state laws provide some protection to
employee communications. However, this protection is quite limited.
Until the law develops further, employers should prepare carefully
drafted Policy Statements that explain how the employer intends to
monitor employee communications. And employees, even in the absence of
such Policy Statements, would be well advised to consider their
communications available and accessible to the employer. Also, where
privacy is an issue, employees and employers can create a more
productive work environment if they work together to jointly develop a
Policy Statement that balances the legitimate interests of both the
employer and the employees.
From THE COMPUTER LAW REPORT December 28, 1995 [#15] Copyright 1995.
The Computer Law Report is distributed (usually) weekly for free and is
prepared by William S. Galkin, Esq. The Report is designed specifically
for the non-lawyer. To subscribe, send e-mail to [email protected]
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