Right to Privacy on Businesses

¶ … Right to Privacy on Businesses

One of the most sacrosanct yet hotly debated constitutional rights in the American criminal justice system is how to define the nature of attorney-client privilege. In short, this privilege specifies that the conferences between a lawyer and his or her client cannot be used against the client in a court of law, and are considered a private matter between the client and his or her attorney, and an extension of the client's right to counsel. This privilege extends to phone conversations between the attorney and the client as well as face-to-face communication between the two parties. However, in the case of Asia Global Crossing, Ltd., et al., the conference between the client and his attorney took place over the company in question's email system. (Samson, 2005)

In their ruling regarding case, the court held that that the use of a company's e-mail system by an employee to send personal e-mails to the employee's personal counsel did not waive the employee's attorney-client privilege. The court held that the employee had a reasonable right to assume his or her privacy was being protected and that the emails between the employee and his or her lawyer would be kept confidential, given the parameters of e-mail privacy set by the company. In terms of the specific details of the case, when AGC was filing for bankruptcy, after the officers of the company were directed to leave AGC's premises, copies of e-mails on the company's e-mail servers were still extant. The trustee wished the company officers to produce the e-mails while the officers stated the server e-mails were privileged. The trustee argued that the employees' privacy had been waived by the use of the company's e-mail system to transmit these e-mails.

The court's ruling in favor of the employees means that if an employee wishes to use his or her office Intranet to communicate with his or her attorney, his or her e-mails are considered protected, if he or she has a reasonable expectation of privacy on the company's Intranet server. The ruling, however, raises an additional question for businesses -- what about other kinds of private communications between employees? If two employees are accused of being engaged in plotting a criminal activity over the work Intranet, are their communications protected if someone unknowingly stumbles upon such private communications, unless a warrant has been issued, or a judge has issued a virtual equivalent of an Internet wiretap during the communication, like a tapped phone?

The rationale behind the decision regarding AGC was based in New York and California statutes that read: "a privileged communication does not lose its privileged character for the sole reason that it was sent by e-mail or because persons necessary for the delivery or facilitation of the e-mail may have access to its content. (Samson, 2005, citing NY CPLR 4548 and Cal. Evid. Code 917 (b)) This means that the rationale behind the ruling was not limited to, or based solely in the attorney-client relationship. The court stated that employee awareness was the issue. The dominant considerations were if the corporation maintained a policy banning personal or other objectionable uses of e-mail, explicitly monitored the use of the employee's computer or e-mail, claimed a right of access to the computer or e-mails, or notified the employee, of the use of monitoring policies, all of which would diminish his or her expectations of privacy. (Samson, 2005) in this case, ACG did not demonstrably enforce any of these measures. This meant employees had a right to assume they were engaged in a private and thus privileged communication with their attorneys.