Employee Internet Use: Torts, Crimes & Employer Liability

Torts Employees May Commit Using Workplace Internet

This consultation has been prepared for the CEO of a Fortune 500 company regarding the use of the internet by its employees. It examines internet usage patterns in the workplace and identifies possible ways to reduce illegal or improper use of company internet resources.

There are quite a number of torts that could be committed by employees in the workplace. Several legal cases have demonstrated these torts. One prominent example is Smyth v. The Pillsbury Company, heard in the Federal Eastern District of Pennsylvania. In that case, the plaintiff, Michael Smyth, filed a lawsuit against his former employer, The Pillsbury Company, claiming wrongful discharge after the company fired him for sending electronic mails it considered unprofessional and inappropriate through its internet system (Muhl, 2003). Because Smyth was an at-will employee, his lawsuit ultimately concerned whether his discharge had contravened the state's "public policy" and thus qualified as an exception to the general rule permitting the termination of at-will employees for any reason at any time.

The Federal Eastern District Court granted the defendant's motion to dismiss for the plaintiff's failure to state a claim. The court ruled that The Pillsbury Company had not committed the tort of invading the employee's privacy and therefore had not violated public policy in discharging Smyth. This case illustrates that harassment torts can also be raised against employees who misuse workplace communications systems.

In another significant case, United States v. Simons, initially filed in the Federal Court of the Eastern District of Virginia, the federal government prosecuted Mark Simons, a Central Intelligence Agency employee, for violating federal child pornography laws. Simons, a staff member at the CIA's Foreign Bureau of Information Services, allegedly used the agency's computer systems and internet access to break the law. During a routine audit of its systems, the agency discovered that its computer network had recorded a high volume of external activity. The systems manager searched the network's activity logs using the term "sex," believing the search would reveal inappropriate conduct (Muhl, 2003).

The search proved fruitful, returning several hits traced to Simons's workstation. As the investigation continued without notifying the subject, an IT specialist was directed to access Simons's computer remotely to determine whether he had downloaded any inappropriate files or images. That search also returned numerous files that the systems manager classified as pornographic (Muhl, 2003). This case demonstrates that employees may also commit torts and crimes related to pornography and child protection laws. Taken together, these cases show that employees can engage in a wide variety of tortious conduct using workplace internet resources.

Possible Crimes That Could Be Committed by Employees

Prior to the strengthening of modern anti-cybercrime laws, the two federal statutes most commonly used to prosecute cyber criminals were the wire fraud statute—which prohibited using interstate communications networks to further any scheme to defraud—and the Interstate Transportation of Stolen Property (ITSP) statute. Of these two, the wire fraud statute was the more sweeping and ultimately more successful tool for prosecution (Rasch, 1996). Many modern cybercriminal offenses were initially prosecuted under this statute. The legislation is broad in scope and requires only evidence of any scheme or artifice to defraud another of property or money, along with the use of national or international communication networks to further that scheme. As a result, nearly every type of fraud offense can be prosecuted under this law, including the theft of commercially valuable property or information.

The most directly relevant offense in the corporate context is the use of communication networks such as the internet for fraud or theft. For instance, members of the Legion of Doom hacking group were prosecuted for two offenses: trespass into computer systems and unauthorized use of computer resources. This case illustrates how cyber criminals can infiltrate computer networks and exploit the data obtained for criminal purposes. Various states across the U.S. also have laws that penalize the theft or misappropriation of trade secrets. However, prosecuting such offenses requires the government to first demonstrate that the information in question constituted a trade secret and that an agreement existed between the defendant and the property owner prohibiting the disclosure of that information (Rasch, 1996). All of the elements described above may apply in either white-collar or blue-collar contexts depending on the circumstances.

Corporate vs. Employee Liability

Many companies, aware of the productivity and performance benefits of internet access, provide their employees with such services. In recent years, however, the growing availability of internet access has led to increased corporate liability (Employer Liability for Improper Computer Use by Employees). When employees misuse employer-provided internet services, they expose their employers and their companies to civil lawsuits and, in some cases, criminal liability at both the state and federal levels.

One of the primary legal doctrines governing such situations is respondeat superior, which holds an employer or corporation explicitly liable for the actions of an employee. The doctrine, which came into prominence in the early twentieth century, established that an employer could be held responsible for damages arising from an employee's actions if those actions occurred while the employee was acting on behalf of the employer or furthering the company's interests. It is therefore unsurprising that the scope of liability defined by this doctrine has been extended over the past decade to cover employee misuse of company-provided internet access. For instance, foreseeable acts carried out using the internet—even those that benefit only the employee—may result in the employer being held liable for resulting damages (Employer Liability for Improper Computer Use by Employees). Furthermore, the employer's actual awareness of the act is not always required to establish liability. In most cases, therefore, companies may be held accountable for the online actions of their employees.

References

Adams, C. (2004). The right of privacy of employees with respect to employer-owned computers and e-mails. The Oklahoma Bar Journal, 75(28).

Frayer, C. (2002). Employee privacy and internet monitoring: Balancing workers' rights and dignity with legitimate management interests. Business Lawyer, 57(2), 857–878.

Human Resources Management: Employment Tips and Samples (n.d.). Sample internet and email policy for employees.

Muhl, C. (2003). Workplace e-mail and internet use: Employees and employers beware. Monthly Labor Review, 36.

Rasch, M. (1996). Criminal law and the internet. In The internet and business: A lawyer's guide to the emerging legal issues. Computer Law Association.

Tucker Law Group (n.d.). Employer liability for improper computer use by employees.

Warren, M., & Pedowitz, A. (2011). Social media, trade secrets, duties of loyalty, restrictive covenants and yes, the sky is falling. Hofstra Labor and Employment Law Journal, 29(1).

Yerby, J. (2013). Legal and ethical issues of employee monitoring. Online Journal of Applied Knowledge Management, 1(2).