FAQ about E-Mail Espionage

By Marie D’Amico, 

Many companies have written policies that allegedly give them the right to read e-mail sent or received by their employees on a company-owned system. But court decisions haven't necessarily backed up their belief. NetGuide legal columnist Marie D'Amico looked at the court cases that have addressed employer e-mail snooping for this month's online FAQ. Three cases which have resulted in written judicial opinions on this topic reveal that the decisions make it far from clear.

The bottom line? If you're an employer without specific legislation or a written case opinion (in your state) backing you up, don't spy on employees' e-mail without a court order, a warrant, or at least clear and convincing evidence that an e-mail search will turn up evidence of a crime or work-related misconduct. If you're an employee, be on the safe side. Use a personal e-mail account for your personal e-mail and send it from your home computer.

1. Bonita Bourke v. Nissan Motor Corporation in U.S.A .

Just the Facts, Ma'am: In this case, Bonita Bourke and Rhonda Hall appealed an entry of summary judgment entered against them by the Superior Court of Los Angeles County to the Court of Appeals of the State of California for the Second Appellate District, Division Five.

Nissan Motor Corporation hired Bonita Bourke and Rhonda Hall as information systems specialists in June 1989. In June 1990, while conducting a training session, one of Bourke's co-workers read Bourke's e-mail to another employee. It was personal, sexual and not business-related. Nissan issued written warnings to the plaintiffs for violating company policy prohibiting personal use of the company computer system. They were later dismissed by Nissan. They then sued Nissan for wrongful termination, common law invasion of privacy, violation of their constitutional right to privacy, and violation of the California criminal laws prohibiting wiretapping and eavesdropping. Since the wrongful termination claim is not relevant to the issue of e-mail espionage, we'll discuss just the other claims.

The trial court in Los Angeles County ruled in Nissan's favor basically because the court thought the plaintiffs had no reasonable expectation of privacy in their e-mail messages sent or received at work.

The Court of Appeals' Ruling: With regard to the claims of invasion of privacy, the Court of Appeals found the plaintiffs had no reasonable expectation of privacy in their e-mail at work; therefore, Nissan couldn't possibly violate their right to privacy. With regard to the violation of the California Criminal Codes, the Court found Nissan's actions were not prohibited by the statutes. The Court of Appeals affirmed the trial court's ruling of summary judgment in Nissan's favor.

NetGuide Explains it All to You:

Summary Judgment: Courts grant summary judgment to a party when, even if they wear rose-tinted glasses for the other party, there just isn't a case. In other words, there is not enough evidence or law to warrant sending this case to a jury when the outcome is clear. Courts rarely grant summary judgment motions because there are very few 'open and shut cases' unless you're in Judge Wapner's courtroom.

Invasion of Privacy: The Court ruled "one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." This right of privacy exists under both common law (law that existed before legislators bumblingly tried to write it all down) and under he California Constitution. Nissan demonstrated (in facts undisputed by the plaintiffs) that: 1) The plaintiffs signed a Computer User Registration Form that stated, "it is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business;" 2) More than a year before termination, Bourke knew that e-mail messages sometimes were read by other Nissan employees; and 3) Six months before Bourke's termination, a Nissan co-worker complained to Bourke about some personal e-mail Bourke had sent to another Nissan employee. Based on these facts, the Court ruled that the plaintiffs knew their e-mail could be read without their knowledge or consent, and therefore, they had no reasonable expectation of privacy in their e-mail messages.

Criminal Wiretapping/Eavesdropping : The Court ruled that the California criminal statutes applying to wiretapping/eavesdropping applied only if Nissan had accessed the e-mail messages during transmission, not after the e-mail messages had already been stored. Of course, these statutes were written in the dark ages when no one had e-mail; the legislators were only concerned with true wiretapping, not downloading and retrieving, as privacy violations. The Court clearly understood these laws were now antiquated. "While plaintiffs may argue that the law is outdated, judges are not authorized to amend statutes even to bring them up-to-date," the decision says.

What's Really, Unbelievably Important: This case has been cited repeatedly in news reports and articles regarding employer's right to access employees' e-mail. An online report says, "Since there's no strong legislation that specifically addresses electronic privacy concerns, it's not surprising that the courts have overwhelmingly supported employers in cases of workplace monitoring." The Court's statements might agree with this report but you can't cite it for this proposition. Why not? The opinion is clearly marked NOT FOR PUBLICATION at the top, which means it cannot be used as a precedent in another case, says Kerry Konrad, counsel to Simpson, Thatcher & Bartlett in New York and outside counsel to major corporations like Lotus Development Corporation (now IBM ) and Digital Equipment Corporation ( DEC ). "The judges may think the facts of the case are so unusual that first, any decision will not be appropriate for use as precedent, or second, they are unsure whether an appellate court would agree with that decision, and they don't want to establish rules that would apply in other cases until there is further guidance," Konrad said. "Therefore, a case marked "not for publication" shows only what a particular court would do with a particular set of facts, being warned that you should not extrapolate from that case if you have the same issues again," he added.

2. Alana Shoars v. Epson America, Inc.

Just the Facts, Ma'am: In this case, Alana Shoars appealed an entry of summary judgment entered against her by the Superior Court of Los Angeles County to the Court of Appeals of the State of California for the Second Appellate District, Division Two.

Epson America, Inc. hired Alana Shoars to provide software training and user support. Shoars notified users their e-mail was private and confidential, but in August 1989, her supervisor tapped some e-mail, printed and read it. Shoars, discovering the action, removed the printouts from her supervisor's open office, reported him to Epson's general manager and insisted the supervisor cease. She also requested a personal e-mail account for herself which her supervisor couldn't tap. Shoars' supervisor fired her for insubordination in requesting the personal e-mail account. Shoars sued Epson for wrongful termination in violation of the California criminal laws prohibiting wiretapping, eavesdropping and slander. Since the slander claim is not relevant to the issue of e-mail espionage, we'll will discuss just the other claims.

The trial court in Los Angeles County ruled in Epson's favor basically because Shoars forgot to file a legal paper. The Court of Appeals took pity on Shoars and decided to review the case anyway.

The Court of Appeals' Ruling: With regard to the violation of the California Criminal Codes, the Court found Epson's actions were not prohibited by the statutes. The Court of Appeals affirmed the trial court's ruling of summary judgment in Epson's favor.

What All the Legal Mumbo-Jumbo Means:

Summary Judgment: Courts grant summary judgment to a party when, even if they wear rose-tinted glasses for the other party, there just isn't a case. In other words, there is not enough evidence or law to warrant sending this case to a jury when the outcome is quite clear. Courts rarely grant summary judgment motions there are very few 'open and shut cases' unless you're in Judge Wopner's courtroom.

Criminal Wiretapping/Eavesdropping : The Court ruled that the California criminal statute applying to wiretapping/eavesdropping applied only if Epson had accessed the e-mail messages during transmission, not after the e-mail messages had already been stored. These statutes were written in the dark ages when no one had e-mail; the legislators were only concerned with true wiretapping, not downloading and retrieving, as privacy violations. The Court also ruled the California criminal statute prohibiting eavesdropping or recording a confidential communication didn't apply to Epson reading its own employees' e-mail (which wasn't confidential to Epson).

What's So Important You Must Read This: This case has been cited repeatedly in news reports and articles regarding employer's right to access employees' e-mail. The Court's ruling might agree with these articles but you can't cite it for this proposition. Why not? The opinion is clearly marked NOT FOR PUBLICATION at the top, which means it cannot be used as a precedent in another case, says Kerry Konrad, counsel to Simpson, Thatcher & Bartlett in New York and outside counsel to major corporations like Lotus Development Corporation (now IBM) and Digital Equipment Corporation (DEC). "The judges may think the facts of the case are so unusual that first, any decision will not be appropriate for use as precedent, or second, they are unsure whether an appellate court would agree with that decision, and they don't want to establish rules that would apply in other cases until there is further guidance," Konrad said. "Therefore, a case marked "not for publication" shows only what a particular court would do with a particular set of facts, being warned that you should not extrapolate from that case if you have the same issues again."

3. Smyth v. The Pillsbury Company

Just the Facts, Ma'am: In this case, the United States District Court for the Eastern District of Pennsylvania, on January 18th, 1996, granted a motion to dismiss by the Pillsbury Company against a claim by a Pillsbury employee, Michael Smyth.

Plaintiff Michael A. Smyth was an employee at Pillsbury, a company that repeatedly assured its employees that e-mail would remain confidential and could not be intercepted and used by Pillsbury against them as grounds for termination or reprimand. In October 1995, the plaintiff received e-mail at his home from his supervisor, who was using Pillsbury's e-mail system. Smyth responded, and Pillsbury later intercepted his e-mail message and terminated him for transmitting inappropriate and unprofessional comments over the company's e-mail system.

Smyth filed a claim alleging Pillsbury wrongfully discharged him, even though he was an at-will employee (defined as an employee who may be terminated at any time by his employer, with or without cause). Pillsbury moved asked the Court to dismiss the case based upon Smyth's failure to state a claim.

The Court's Ruling: The Court dismissed Smyth's case for failure to state a claim.

NetGuide Explains Everything:

Failure to State a Claim: Courts rarely grant motions to dismiss based upon a failure to state a claim. A failure to state a claim means the Court has reviewed the papers, accepted the facts as true, and said, "so what?" The Court rules that no set of facts, nothing the plaintiff alleges, even if assumed to be true can provide the basis for a claim under which he might be entitled to relief. It's quite difficult to get dinged at this early stage unless the papers you've filed just don't show anything at all upon which a Court can hang its hat.

Wrongful Discharge of At-Will Employees: Pennsylvania just doesn't permit at-will employees to sue for wrongful discharge. You take a job in Pennsy, you take your chances, that's it. In its entire history, Pennsylvania has only permitted three limited exceptions to this rule -- at-will employees cannot be fired for serving on jury duty, for having a prior conviction, or for reporting violations of federal regulations to the Nuclear Regulatory Commission. (Remember, Three Mile Island is in Pennsy). The Court said it could only recognize Smyth's claim if an exception were clearly defined somewhere in legislation, administrative rules, regulations, decisions or case law. But alas, the Court could find no exception for wrongful discharge based on reading the contents of e-mail already in place and the Court declined to recognize one. After all, if it took them about 220 years to make three exceptions, it'll be a while before they make a fourth. The Court said, "We do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would be intercepted by management."

The Important, Good Stuff: If you look at the facts in this case, you can see why Smyth was doomed. With only three exceptions in about 220 years to the rule that at-will employees can be fired willy-nilly, it'll be about 74 years before Pennsylvania recognizes a fourth exception. This case should only be read to support the precedent that in Pennsylvania, you either get an employment contract or you live at the will of your employer. Trying to read anything more into it is like trying to figure out why the Philadelphia 76ers haven't played well since Dr. J retired. They just haven't, that's all.

You can find these cases online .

4. Do You Think Employers Can Police E-Mail?

You're not alone if you do. The Society for Human Resource Managers , which has more than 70,000 professional and student members, conducted a random sampling of 3,000 members in December 1995. More than 500 responded to the survey. E-mail is used by nearly 80 percent of the responding organizations; 34 percent of these companies had written workplace privacy policies governing e-mail; and 32 percent had broader privacy policies governing other personal effects like desks and private papers. Of those surveyed, 36.4 percent said they access employee e-mail records for business necessity or security, while 7.7 percent do random reviews of employee e-mail. A whopping 70 percent of the participants said an employer should have the right to read anything contained in a company-owned electronic communication system. No one said why they had this right, they just think they do.

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