E-mail and Privacy Rights in the Workplace
...l communications. A popular computer magazine reported the results of a 1993 survey in which 301 businesses were asked about their electronic monitoring practices. Thirty percent of employers having more than 1,000 workers, and 22% of smaller employers routinely engaged in some form of electronic monitoring. Of the employers who reported that they electronically monitored employees, 73.8% searched employee computer files, 41.5% examined employee e-mail, and 15.4% reviewed employee voice mail. Significantly, only 18% of the businesses surveyed reported having a written policy regarding electronic privacy for employees (Linthorst, T., Underhill M., 1996). Although employees may view their use of e-mail and the Internet as "private," the law does not; privacy laws to date have not evolved to protect employee use of the Internet at work. This is particularly true of inappropriate or unprofessional comments and potentially illegal activity. In this context, a company’s interest in preventing inappropriate use of its e-mail system outweighs the individual employee’s right to privacy related to such use. Accordingly, employers should reinforce to their employees, both in the e-mail policy and subsequent training or informational memoranda, that the employee’s use of the Internet or e-mail at work is not a protected private activity and may give rise to liability for misuse. Additionally, implementing a policy that informs employees that their e-mails are not private assists the employer should litigation resulting from inappropriate use of electronic media become necessary. Currently, the only federal statute that specifically addresses interception of e-mail communications is the Electronic Communications Privacy Act of 1986. This Act is divided into two sections. The first section makes it illegal for anyone to "intercept a wire, oral, or electronic communication where such person is a party to the communication." The second section makes it unlawful to "intentionally access without authorization a facility though which an electronic communication service is provided" or to "intentionally exceed an authorization to access a facility." (Wagner, M., 2003). In plain language, section one prohibits interception of an electronic communication while it is being transmitted. Section two prohibits the unauthorized access of an electronic communication that is stored in a computer. There are three exceptions within the Act that are particularly important to employers who wish to monitor e-mail communications. First is the prohibition against intercepting communications does not apply where one of the parties to the communication consents to the interception. Consent may be implied where an employer puts its employees on notice that their electronic communications will be monitored. Second, the statute permits employers to intercept communications in the "ordinary course of business". In applying this exception, courts have looked at such factors as whether the employer provided notice to the employees of the monitoring, whether the level of monitoring was justified by the employer's legitimate business interests, and whether the communication was of a "business" nature. Third, the statute does not prohibit the interception of messages by the e-mail service provider, where the interception is necessary to provide the e-mail service, or to protect the property rights of the provider. This except...