CEO Memo on Internet Use

¶ … consultation done for a CEO of a Fortune 500 company regarding use of internet by its employees. The consultation will look into internet usage by employees and possible ways to reduce illegal use of internet at the workplace.

Torts that the employees might be committing using the Workplace Internet

There are quite a number of torts that could be committed by employees at the workplace. Quite a number of legal cases have demonstrated these torts, for instance, the case Smyth vs. The Pillsbury Company, in the Federal Eastern District of Pennsylvania. In the case, the plaintiff, Mr. Michael Smyth filed a lawsuit against his the company he formerly worked for, The Pillsbury Company, claiming that he was wrongfully discharged, after the company fired him for sending electronic mails, that the company considered unprofessional and inappropriate, through the company's internet system (Muhl, 2003). Since Michael was an at-will staff, his lawsuit was really about whether his discharge had contravened the state's "public policy" and thus was an exception of the general rule that allowed for the firing of at-will employees for any reason at any time. The Federal Eastern District Court granted the defendant's (the Pillsbury Company) motion to dismiss the lawsuit for the plaintiff's failure to clearly state a claim. The court in its ruling claimed that the company did not commit the tort of invading the staff's privacy and thus didn't contravene public policy in discharging Smyth. This case shows that harassment torts can also be brought up against employees.

In another tort case, titled United States v. Simons, that was initially filed in the Federal Court in the Eastern District of the state of Virginia; the Federal government was prosecuting a Mr. Mark Simons, a CIA (Central Intelligence Agency) staff, for contravening the Federal child pornography legislations. The defendant, a staff at Central Intelligence Agency's Foreign Bureau of Information Services, is claimed to have in that capacity used the firm's computer systems and internet access to access break the law. The federal government alleged that during the agency's routine check of its systems capabilities, they found out that their computer network recorded a lot of activity outside the system. The manager of the system, then using the word "sex" searched through the network's activity logs, in the belief that his search would yield inappropriate conduct (Muhl, 2003). The search turned out to be fruitful as it returned several hits that came from Mark Simon's workstation. As the investigations progressed without the defender being informed, another IT (information technology) expert was instructed to access Mark Simon's (the defendant's) computer remotely so as to establish whether he had downloaded any inappropriate files or images. The search also returned with a number of hits that the systems manager classified as pornographic (Muhl, 2003). So, some of the other torts that can be committed by employees are pornography and child law torts. Thus, there are different kinds of torts that can be committed by employees.

Possible crimes that could be committed by Employees

Before the recent strengthened anti-cyber crimes laws, the two federal statutes that were commonly used to prosecute cyber criminals were the wire fraud law, which prohibited the utilization of interstate network communications facilities to further any scheme or as a tool to defraud, the other one which was used is the ITSP (Interstate Transportation of Stolen Property) statute. Of the 2 legislations, the more sweeping and thus most successful of them, is the wire fraud legislation. In fact many of the modern cyber criminal offenses were penalized under the wire fraud statute (Rasch, 1996). The legislation is wide in scope, and simply requires evidence of any type of artifice or scheme to defraud property or money, and the utilization of national or international communication wires to further the said scheme. Thus, almost every kind of fraud offenses can be persecuted using this law including, stealing of property or money that is of commercial value, thus the wire fraud offense offers a sufficient basis of criminal persecution. The most relevant offense however, with regards to employees' behavior in companies is through the use of communication networks such as the internet for fraud or theft. For instance, Legion of Doom gaming site members were prosecuted for two offenses; trespass into computers and unauthorized utilization of computer resources, this case provides a fine example of the manner through which cyber criminals can break into computer networks and use the data acquired for criminal purposes. Various different states all across the U.S. have laws that penalize the stealing / misappropriation of data that can be classified as trade secrets. However, the proof of this offense would first require governments to give evidence that the data or information did indeed constitute a trade secret, and that there was an agreement between the defendant and the property owner that prohibited the sharing of that information (Rasch, 1996). All the elements mentioned in the instance above can be considered both white collar and blue collar based on the circumstances.

Corporation v. Employee Liability

Many companies, aware of the advantages in terms of performance and productivity that are inherent in the use of the internet, offer their workers access to such services. Of late however, the rising access to internet services has resulted in increased company liability (Employer Liability for Improper Computer Use by Employees). When employees misuse internet services provided by employers they in turn expose their employers and the companies they work for, to lawsuits and even in some cases criminal liability at the state and even federal levels. One of the legal doctrines that deal with such crimes is referred to as Respondeat superior; it held explicit liability to an employer or a corporation for the actions of an employee. The doctrine, which first came to the limelight in the early 1900s, stated that an employer could be held responsible for damages that came about because of an employee's actions if they occurred when he was acting on behalf of the employer or furthering a course for the company in which he was employed. It isn't surprising that that the liability defined by the doctrine in the last decade had been extended to employee's misuse of company-provided internet. For instance, foreseeable acts that could be carried out using the internet, even in cases that they would only benefit the employee, could result in the employer being held liable for damages (Employer Liability for Improper Computer Use by Employees). Moreover, the awareness of the employer about the act is in some cases not required to hold him or her liable. So basically, in most cases companies are held liable for actions of their employees.

Violations through Social Media

Social media sites are a menace to corporations and employers that desire to protect their trade secrets. The main challenge presented by social media sites, is the ease of using them and the lack of awareness for those using them that they are breaching the law in sharing such information. For instance, even though it is quite common for workers to vent against their companies or employers, there have quite a number of instances where employers have responded by discharging the employees because they posted defaming material or portrayed the company in negative light on social media sites (Warren and Pedowitz, 2011). In one example, a worker in Connecticut was fired when she made comments on her social media account calling her boos a scumbag after she entered into an argument with her. . Another example is of a waitress in the state of North Carolina, who was fired after she posted derogatory comments about a customer to their restaurants calling him cheap after he gave a tip that she regarded disappointing. Employees can also violate the law by posting their company's or their employer's confidential information or data such as internal sales figure, unannounced layoffs, or products being developed.

As mentioned above employees might use social media in such a way that it would be considered to have violated their duty to be loyal to their employer. One such example is the case of Hahn v. Onboard, L.L.C., where the defendant (Onboard Corporation) had paid Robert Hahn, the plaintiff, and other staffs to go to a trade conference to represent them. During, the said trade conference, Hahn organized a focus group as instructed and participated in several meetings on behalf Of Onboard, L.L.C. however, during the same conference, Robert Hahn took the opportunity to distribute personal cards for his website, blog and twitter account. Even though, the company had knowledge that Hahn had a website, a blog and a twitter account, they were not aware that he was distributing cards promoting them during the conference (Warren and Pedowitz, 2011). The court established that in the distribution of personal blog and website cards at the conference, the client violated his duty of loyalty to his company/employer and therefore denied the plaintiff's motion for summary judgment on the matter.

Privacy Rights of Employees

In cases of employee privacy rights in terms of internet usage, there is often a disagreement as to draw a line in terms of employee's privacy in using company internet. There are quite a number of arguments that support employee privacy; however there are also strong arguments why companies should simply not grant such privacies to their employees. Organizations such as the Workplace Fairness, American Civil Liberties Union, and the National Work Rights Institute have argued that remotely or secretly monitoring employee online activity on company networks violates protected workplace rights. Under that argument, it would look as if monitoring of workers should not occur at all. However, according to Frayer (2002) it would be absurd to prohibit employer monitoring of workers internet activities (Yerby, 2013). For instance, Frayer opines that monitoring workers internet usage would be an effective tool to confirm an employer's suspicions of whether a worker is utilizing the internet to reveal company secrets.

According to McEvoy, one of the challenges faced with online monitoring is that in spite of companies informing their workers about the monitoring, many workers still assume it and go ahead and conduct themselves in behaviors that would subject them to disciplinary measures. Some of the inappropriate online acts committed by employees that would bring about disciplinary actions include: violation of company policies, language inappropriateness, too much personal use and violation of confidentiality agreements (Yerby, 2013 So as to take care of employee concerns it is important for employers to explain to their employees all their monitoring plans with regards to internet usage so that their employees can avoid doing anything online that will call for disciplinary measures.

Employment Law that protects/Recommendations

In terms of employment legislations, it is known that employees own or pay for both the networks and for the time of their workers, thus they do have a right to monitor their worker so as to check whether they are actually performing their duty (Adams, 2004). Besides using company internet on personal errands, employees might also be: committing crimes, bothering other employees, revealing company trade secrets or exposing the firm to liability. However there also legislations in place to protect employee online privacy and they include, the Electronic Communications Privacy Act (ECPA). The ECPA, also known as the Federal wiretapping statute, at first prohibited the unpermitted interception of either oral or wire communications only in conditions where such information could be audibly overheard. In 1986 however, the statute was amended to include the interception of even electronic communications (Adams, 2004). Further amendments have also been made to extend the legislation to workplaces.