Electronic Privacy & Your Company's Email

Electronic Privacy: “Snoop” Out Problems Using Your Company's Email
January 3, 2006
Remember that “secret family recipe” you sent from your work computer to a co-worker or that joke that you forwarded to “just one” friend — more than your intended recipient may have read it. Most employees are surprised to find that there is little or no protection their right to e-mail under federal or state law.

Employees have no right to privacy when using their company’s e-mail system and no one is immune to the repercussions of its misuse. That statement was never more clear than last year, when Boeing forced out its CEO, Harry Stonecipher for behavior that was “inconsistent with Boeing’s Code of Conduct.” Information that had been forwarded to the Board of Directors revealed a “personal relationship” between Stonecipher and a female executive of the company. Following an investigation, e-mail he probably thought was “personal” eventually cost Stonecipher his job.

Today companies monitor all of its network systems whether it is for spam and virus protection or reviewing outgoing e-mail. Software to assist in the monitoring of e-mail is relatively cheap and it is certainly cheaper than dealing with widespread computer viruses and loss due to disclosure of company information. In addition to these concerns, employers have other significant legitimate reasons to monitor their employees’ e-mail usage. Monitoring can help employers maintain employee productivity, prevent workplace harassment, assist in meeting the requirements of litigation and Sarbanes-Oxley and prevent employees from downloading and using illegally obtained software. Because of these reasons, employees generally have no reasonable expectation of privacy of e-mail in the workplace. If online activity occurs during work hours and with the use of company equipment, the employer has the right to ‘snoop.’

Most employees have been unsuccessful in cases filed against an employer who snooped their e-mail. E-mail privacy claims have typically been brought for violation of federal or state wiretap statutes or the common law tort of invasion of privacy. However, Michigan’s eavesdropping statute that prohibits the willful use of any “device” to eavesdrop upon a “private conversation” without the consent of all the parties has not been tested on the subject of e-mail. Whether the Michigan statute applies to e-mail arguably turns on the employee’s reasonably expectation of privacy. A federal district court in Pennsylvania held that a terminated employee had no reasonable expectation to privacy when he sent and inappropriate response from his home computer to an e-mail message originating with his work supervisor. The court found that once the employee sent a message “over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost.”

Overall, private sector employers are granted broad discretion in monitoring their employees and subjecting those employees to interrogation and searches. Nevertheless, it is advisable for employers to narrowly tailor the intrusion upon an employee’s privacy. Employees should sign-off on appropriate notices that inform the employee that the workplace, including computers, telephones, lockers, desks, and personal belongings brought into the work area, are subject to monitoring and reasonable searches. This simple notice can minimize the likelihood that an invasion of privacy claim will prevail by reducing the employees’ legitimate expectations of privacy in the workplace.

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