Email Espionage

By Marie D’Amico, 

In a recent random sampling of 500 human resource professionals, more than 70 percent thought an employer should reserve the right to read email sent or received by company-owned electronic communication systems. Armed with that belief, 7.7 percent randomly read employee email and 36.4 percent access employee email for "business necessity" or "security" reasons. While email espionage may be extensive, before you spy, understand that the courts have not yet condoned it.

A couple of cases have addressed the issue of employer email snooping with no clear conclusion. In 1993, the Court of Appeals for the State of California considered whether Nissan Motor Corporation violated two employees' constitutional right to privacy by retrieving and reading their email. The employees had signed a form stating they could only use email for company business and they were warned twice that their email could be, and was, read. Therefore, the Court said the employees had no reasonable expectation of privacy in their email and thus, no violation of that right could occur.

In this case, and a case against Epson America, Inc. decided in 1994, the ex-employees also alleged that these unauthorized employer-email actions violated the California penal prohibitions against wiretapping and eavesdropping. In both cases, the Court ruled these statutes only proscribed access to email during transmission, not retrieval of email from electronic storage sources. The Court stated, importantly, that the penal code "has been noted for its ambiguity" and "while plaintiffs may argue that the law is outdated, judges are not authorized to amend statutes even to bring them up-to-date."

Do these decisions condone email snooping? Absolutely not. Besides the Court's comments, subtlety suggesting legislators straighten up those statutes, both opinions are marked "NOT FOR PUBLICATION." That's legal jargon for "for your eyes only." Judges can prohibit publication of an opinion (in the official court reports) when they want to prevent it from being used as a precedent in subsequent cases. They may feel that, while the particular facts of the case caused their conclusion, the facts are an inappropriate basis for future litigation. If you're an employer, you can read these cases, then recycle the paper upon which they're printed, because you can't cite them to support your spying.

In January 1996, the United States District Court for the Eastern District of Pennsylvania, said they found no reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system, notwithstanding any assurance that such communications would not be intercepted by management.

In this case, plaintiff was an at-will employee suing for wrongful termination. Pennsylvania, however, does not permit at-will employees to sue for wrongful discharge. The three public policy exceptions to this rule ever recognized in the two hundred year history of that state relate to jury duty, criminal convictions, and reporting violations to the Nuclear Regulatory Commission. The Court repeatedly emphasized that they could not add to these three narrow exceptions without a clear mandate of public policy. This decision is precedent, therefore, only for the specific facts of this case in this specific state.

If you're an employer, sans strong legislation or case law, refrain from email spying without a court order, a warrant, or at least clear and convincing evidence that an email search will turn up evidence of a crime or work-related misconduct. If you're an employee, get a separate account for personal email for your home computer, and delete or encrypt any personal mail sent or received from work.

The text of these cases is also online .

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