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How private is employee use of E-mail?

Should employer access to private thoughts recorded in a message stored on a disk drive be subject to search simply because the computer system may otherwise possess the capability to numerically measure employee output?

Should access turn upon the fact that the disk is owned by the employer any more than interception of a written message should be permitted because it was typed on employer-supplied paper using an employer-supplied typewriter?

Simply put, we think there is a sharp distinction between employer interception which reveals the content of a message or thoughts, and interception which simply measures productivity (e.g., counting keystrokes). The degree of intrusion is qualitatively different and the employer's interests in the depth of search, likewise.

These distinctions have been lost as the workplace moved into the computer age, since the computer system may be used for both types of purposes. The fact that a computer is an instrument by which employer surveillance may be conducted should not cause the analysis to become undimensional so as to judge propriety based upon the type of device used or its ownership. Instead, the sharp distinction in the types of invasion caused by reading of messages versus mere measurement of output and the nature and character of the employer's need to measure productivity should be accounted for in the analysis.

The Thomasson v. Bank of America case illustrates this distinction perfectly. The plaintiff employee was a secretary employed to type letters. Were the computer system to be built with a facility for measuring the total number of letters typed per day, no discovery of plaintiff's side career as a stripper should have occurred and that aspect of plaintiff's life would have remained a secret.

Only when the computer was used for a message content probing search was this information revealed. The question then becomes whether the employer had any legitimate interest in learning this type of information concerning plaintiff's private life. Bourke v. Nissan is similar. Does an employer have a legitimate business purpose in monitoring employee jokes or language? Should employees send messages in fear of such inspection?

In O'Connor v. Ortega, the court noted that "not everything that passes through the confines of the business address can be considered part of the workplace context," and found that an employer's search of a desk and file cabinet used only by one employee was a violation of that employee's privacy.

In the most detailed treatment of an employer search to date, a Texas court found that employers violated an employee's right to privacy by conducting a search. In K Mart Corp. v. Trotti, the court found that a search of a company-owned locker violated the employee's right to privacy. The court reasoned that company policy allowing employees to purchase and use their own locks on lockers, without requiring the employees to give the combination or key to the employer, allowed the employee to be justified in concluding that the locker and its contents would be free from intrusion and interference.

The ease with which employers seem to be able to intrude into an E-mail user's privacy poses a grave risk to the effectiveness of this form of communication. Only if employees are given the same right of privacy they have for private papers contained in their desks and files can the medium develop as a full replacement for "paper" mail. Just as an employer does not have the right to open interoffice mail, he or she should be precluded from "opening" interoffice E-mail files.

The cases to date, however, have not been sharply focused. The analogies argued above have yet to be fully set out in appellate authority.

There is a partial response to the problem in the form of legislation pending in Congress that specifically addresses the issue of E-mail. Senator Paul Simon has introduced the Privacy for Consumers and Workers Act of 1991, which requires that an employer give employees ample notice before monitoring their phone, computer or video. This law would provide for up to $10,000 in fines for violations, and would allow employees to sue for compensatory and punitive damages and attorney's fees. The bill is pending approval by the Senate while a similar bill is pending House approval.

Data files stored in a computer network also give rise to privacy concerns. Generally, when a user is linked in a computer network, files are stored on a central storage facility or file server. While different users are assigned different portions of the central file server for their storage needs, and have various passwords entitling them to access these areas, the entire file server is maintained in one centralized location.

While the use of passwords may foster some expectation of privacy similar to that of phone mail and E-mail, employers will generally possess the electronic means to access every file on the server.

Many of the issues surrounding an employer's access to computer files mirror the issues involved with an employer's access to stored E-mail. Even more than E-mail, the employer's policies and practices surrounding files saved on a file server would determine the employee's reasonable expectation of privacy.

An employer's access to these files should be based on a legitimate business concern and should be no more intrusive than necessary to carry out the employer's legitimate interest.

It is apparent that many of the existing privacy statutes are clumsy tools at best in grappling with the electronic workplace. If the marvels of these electronic tools are to be fully utilized, it is essential that ordinary human expectations of privacy be honored. Messages transmitted with a computer in an environment of fear of interception and access by others may lose their effectiveness. Similarly chilling would be the specter of random access for computer files and notes created by employees.

The answer must lie in creating a carefully fashioned legislative solution specifically for E-mail and electronically stored documents. The sole statute which has been proposed by Sen. Simon is too narrow in its focus. The ease with which all of these forms of computer communication and storage can be accessed cries out for a more comprehensive scheme of privacy protection.
COPYRIGHT 1993 Nelson Publishing
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Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Author:Kingston, Jeffrey S.; Lippetz, Gregory L.
Publication:Communications News
Date:Oct 1, 1993
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