Stop Before You Spy on That Email

By Marie D'Amico, 

Do you think it’s safe to spy on your employee’s email? Are you randomly downloading employee email to ensure your company-owned computer system isn’t employed for personal purposes? Since 1993, three court cases have addressed the issue of employee email privacy. But, if recent news reports about these lawsuits have given you comfort and carte blanche in snooping on your employee’s email, stop right now.

In June 1989, Bonita Bourke and Rhonda Hall were hired by Nissan Motor Corporation in U.S.A. as Information Systems Specialists. In late 1990, one of their supervisors reviewed the email messages of Bourke and Hall’s entire work group. The supervisor found a substantial number of personal, non-work related email messages. He issued written warnings to both Bourke and Hall for violating Nissan’s policy prohibiting the use of the company computer system for personal purposes. In early 1991, both Bourke and Hall were terminated by Nissan. They sued Nissan for common law invasion of privacy, violation of their constitutional right to privacy, violation of California criminal codes against wiretapping and eavesdropping, and wrongful termination in violation of public policy provisions against privacy intrusions.

In June 1993, the California Court of Appeals ruled that Bourke and Hall had signed a computer user registration form stating "it is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business." Bourke and Hall had also learned their email messages were, from time to time, reviewed by Nissan, and Bourke had been personally warned about personal email. Therefore, the Court ruled Bourke and Hall had no reasonable expectation of privacy in their email, and no violation, based upon common law or the California constitution, could occur. As for the California criminal codes, the Court ruled these statutes only proscribed accessing messages during transmission, not retrieving and printing stored messages. The Court bluntly voiced its displeasure with these codes by saying, "While plaintiffs may argue that the law is outdated, judges are not authorized to amend statutes even to bring them up-to-date." Finally, since the Court found no privacy invasion, Bourke and Hall’s claim for wrongful termination failed.

In a similar case, Alana Shoars sued Epson America, Inc. , alleging that her termination by Epson was in violation of the California criminal codes concerning wiretapping and eavesdropping. She had objected to her supervisor’s tapping, reading, and printing email. Shoars had even removed the email printouts from her supervisor’s open office. Her supervisor had Shoars fired for insubordination when Shoars requested a personal email line.

In April 1994, the California Court of Appeals ruled that the California statute prohibiting wiretapping only prohibiting tapping telephone lines, or reading the contents of a communication while it is passing over wire. The statute didn’t prohibit downloading email messages. The Court once again noted its objection to the outmoded code by saying, "it has been noted for its ambiguity." In addition, the Court ruled that downloading email messages didn’t violate the California codes against eavesdropping because these statutes only applied to confidential communications and email sent or received as part of Epson’s business aren’t "confidential" to Epson itself.

Don’t start your email sleuthing just yet. Both Court of Appeals decisions are clearly marked "NOT FOR PUBLICATION." What does this mean? Kerry Konrad, counsel to Simpson, Thatcher & Bartlett, and a longtime litigator in the technology arena, explains. "Not for Publication is used specifically in order to prevent the use of that decision as a precedent in another case. The judges think the facts of the case are so unusual that first, any decision will not be appropriate for use as precedent, or secondly because 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," he says. "Opinions which are not to be published constitute 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.

In other words, read the decisions, then recycle ’em, because you can’t cite ’em.

Finally, in January 1996, the United States District Court for the Eastern District of Pennsylvania , ruled on a case which, on the surface, gave employer-spooks solace. Michael Smyth sued The Pillsbury Company for wrongful termination. He was terminated after he sent his supervisor email which Pillsbury intercepted, contrary to assurances to Pillsbury employees that email communications would remain confidential, and deemed inappropriate. The Court found no reasonable expectation of privacy in email communications made over a company email system. The context of the case, however, deprives the Court’s opinion of any meaningful precedent outside of its narrow facts and the State of Pennsylvania.

Smyth was an at-will employee at Pillsbury. At-will employees may be fired, with or without cause, at any time by their employers. Generally, the State of Pennsylvania does not provide a cause of action for wrongful termination of at-will employees. Even though Pillsbury repeatedly assured Smyth and others that it would not intercept email, and Smyth might have relied upon that promise to his detriment, the law in Pennsylvania permits Pillsbury to terminate him anyway. The Pennsylvania courts have allowed only three narrow exceptions to the rule regarding at-will employees, based upon prior Pennsylvania statutes and federal law. Pennsylvania thus forbids firing employees for serving on jury duty or for reporting violations of federal regulations to the Nuclear Regulatory Commission, and Pennsylvania forbids denying employment to a person for their prior criminal convictions.

Smyth was requesting a fourth exception to Pennsylvania’s long-standing rule. He had nothing, no federal or state statutes and no case law, upon which to base his exception. Considering that Pennsylvania has only permitted three exceptions in its more than two-hundred year history, its seems reasonable that the Court declined to add another exception. This case can only be read to support the proposition that in Pennsylvania, at-will employees can fired for almost anything. Nothing more.

Where does this leave employee email privacy? Without a warrant, a court order, or consent of the individuals involved, you have no case law precedent for searching your employees’ email. You may own the telephone system, the desks, and the file cabinets at your company, but your employees have a reasonable expectation of privacy in these workplace items. Based upon Supreme Court decisions discussing search and seizure of workplace items, an employer might be justified in an email search if they had reasonable grounds for suspecting that the search would turn up evidence the employee is guilty of work-related misconduct, and if the search was not excessive. Or, they might not be justified.

If you suspected an employee used your telephone system excessively for personal purposes, would you tap the telephone line and listen in, or would you simply look at the total time spent on the phone bill? Without a wiretap warrant, you could only do the latter. Treat email no differently.

Questions? Send me email .

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