Email Privacy in the Workplace,

Email Privacy in the Workplace, Employee, Beware!

The traditional laws of protection of privacy have always been limited in the workplace, as constitutional regulations (with only the exception of California,) that govern the right of the employee for a reasonable assumption of privacy regarding conduct at work are limited to public employees, 4th and 14th amendments. (Clochetti NP) as most individuals do not work for the government, either state or local, the rights they have to privacy are relatively limited, with regard to email and other uses of time during work hours, in the workplace setting. As technology continues to advance with regard tot the ability of the employer to monitor email, the ultimate goal being the ability of the employer to read live transmissions, email monitoring will likely increase, without check. The only guidance for these options currently have been not legal but technology limited and self imposed, although there are a few seminal cases which will be described later they seem to be legitimately broadening rather than restricting employer rights to monitor electronic activity. Technology cost lowering will also guide the process, and it is likely to be in favor of the employer rather than the employee. Basically, if you work for a private company, the restroom is really the only place you are protected from monitoring and if you work for a public entity your rights are limited based on a set of standards associated with efficiency, assumption of privacy and information type.

1993 survey, taken long before surveillance technology got cheap, showed that twenty million workers were subject to monitoring of their computer files, voice and electronic mail, and other networking communications.(74)... Software designed to capture keystrokes, either overtly or surreptitiously, is also readily available. For example, a program called "Investigator 2.0" costs under one hundred dollars and, once installed on the target PC, covertly monitors everything that it does and routinely emails detailed reports to the boss.(76) (Froomkin 1461)

The American Management Association contends that their data indicates that in 1999, 30% of U.S. employers utilized some monitoring of electronic transmissions. "Content Technologies, Inc., a company whose software reads incoming and outgoing messages, saw its sales double every year from 1996 through 1998." (Clochetti NP)

Congress responded to the lack of protection provided by the United States Constitution and the respective state constitutions by enacting the Electronic Communications Privacy Act of 1986 (the ECPA or the Act). The Act "prohibits the intentional or willful interception, accession, disclosure, or use of one's electronic communication."18 "The ECPA defines [the term] 'electronic communication' as 'any transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photoelectric, or photocell system that affects interstate commerce."19 Although e-mail is not specifically mentioned here, "the legislative history clearly shows Congress' intent to include it within the definition of 'electronic communications.'"20

The ECPA has three exceptions that serve to limit is applicability to employer monitoring:

The provider exception;21

The ordinary course of business exception;22 and the consent exception.23

The fact that the courts broadly interpret these three exceptions makes the ECPA's privacy protections illusory at best. An analysis of these exceptions will better illustrate this idea. (Clochetti NP)

The guidance that employers have, as one can see from above is basically defined by a relatively minimal set of requirements, associated mostly with workplace efficiency and expectation of privacy, but often loosely applied by the court. The expectation of privacy, i.e. A closed environment that the employee assumes is private can easily be circumvented by publishing and distributing a monitoring policy that includes the ability of the employer to monitor email. (Rich NP) when determining whether an employee has an "expectation of privacy" the courts have employed the following tests: (1) a subjective test which evaluates the means by which an employee has attempted to protect his/her privacy, (2) an objective test which evaluates the expectation of privacy an employee has in his office or desk in light of security measures and surveillance of employees in the workplace, and (3) a reasonableness standard which judges whether the inception and the scope of invasion of privacy is reasonable under the circumstances and thereby attempts to balance the government's need for supervision, control and an efficient workplace against the employee's expectation of privacy. (Rich NP)

One of the seminal cases regarding these protections, which I again stress are very minimal is O'Connor v. Ortega, which; held that the reasonable standard applies to supervisory searches of public employees. Ortega stands for the proposition that if an employee has a "reasonable expectation of privacy" then one must analyze the reasonableness of the search under the circumstances, i.e., supervision, control and efficiency. Therefore, a public employee has a reasonable expectation of privacy, but it is a qualified one that is subject to the "operational realities" of the workplace. Although Ortega only focused on public employees the decision implied that private employees were not afforded protection....Ortega further suggests that E-mail would be considered an employer tool that is used by employees for work-related communications. If this is the case, and the employer's interests outweigh those of the employee, and privacy interests are less in the workplace than in the home, it becomes highly likely that Ortega extends to E-mail with the probable result that E-mail will be precluded from privacy protection. (Rich NP)

Since Ortega the right to privacy has actually been further weakened by court cases:

Schowengerdt v. General Dynamics Corp.,... further weakened, and possibly practically eliminated, an employee's right to privacy in the computerized workplace. Schowengerdt held that the employee had a reasonable expectation to privacy in work areas of exclusive use to the employee, such as the employee's office, unless the employer had previously notified the employee that the employee's office was subject to a work-related search on a regular basis. The court concluded that despite the employee's reasonable expectation to privacy in his office that a warrantless search of the office was permissible when it was work-related and reasonable under the circumstances. (Rich NP)

It is clear that the current environment of the workplace is demonstrative of the statement "employee be wary." Utilizing your work email for private communications should be a very limited practice and the type of information you divulge in such email transmissions should also be limited. The employee should basically assume, regardless of the documentation or disclosure of an email monitoring policy, that they have no legal right to privacy with regard to email. The laws may change in the future, as more cases reach the courts that require the employer, more explicitly to make employees aware that they are being monitored but that is likely to be the only form of legal protection by the court, and it must also be noted that the courts have given the employer the benefit of the doubt even when the employee claims ignorance regarding email monitoring policies. (Rich NP) Some individuals have attacked firings, on the grounds of illicit use of a company computer as those that could be publicly destructive to their character, i.e. As torts, yet the success has been limited, as basically the court supposes that if you participate in something that is illegitimate then the fault lies with this action, rather than with the action of the employer in his or her attempt to limit such activity in their workplace. (Clochetti NP)