Electronic mail rules must be clear, specific

March 27, 1998|By Larry Atkins

BIG Brother is watching you! Especially if you're at work reading this article online on your employer's computer.

Companies are installing new computer systems for their employees and opening up a whole new world of Internet and e-mail usage.

Some experts predict that by the year 2000, 40 million computers users will send 60 billion e-mail messages each year. Many of these people access the Internet in connection with their work.

Most employees using this new technology are probably unaware that their employers have the capacity to monitor and read their e-mail messages.

And many employers are choosing to do so without telling their employees. These employees have no idea that passwords can be overridden by the employer to gain access to their files.

Employers can use software that enables them to see what is on the employees' screens or stored in their discs and hard drives.

They can also use keystroke monitoring, which tells the employer how many keystrokes per hour each employee is striking. E-mail and voice-mail systems retain messages in memory even after they have been deleted, as they are permanently backed up on magnetic tape stored on the employers' systems.

Employers have more to worry about than employees frittering away company time by going online to check out Dick Vitale's column in ESPN Sportszone or read gossip on the Melrose Place Message Board.

Companies have a valid interest in preventing exposure to liability because of their employees' improper use of their computer systems. E-mail is a relaxed and informal method of communication, and people often say things that they wouldn't put in a formal memo. E-mail messages are subject to discovery in litigation and are considered good sources because of their informality.

A disgruntled employee might disclose trade secrets through e-mail. Employees could use e-mail to harass or threaten another person, thus potentially exposing the employer to liability.

In a pending lawsuit, an alternative Tennessee newspaper sued a local city government to demand computer files that contain information about Web sites visited by government employees on government time.

Employers' rights

Under the Electronic Communications Privacy Act (ECPA), an employer may monitor employee conversations if the monitoring occurs in the ordinary course of business or with the employee's express or implied consent. Courts have not decided to what extent the ECPA applies to employers' monitoring of e-mail.

In 1991, federal legislation was proposed that would have required advance notification to employees of electronic monitoring; this bill, however, was defeated in Congress. Without federal protection, employees have sought relief under the common-law tort of invasion of privacy.

Because e-mail is a new technology, little case law has addressed whether employees have a right of privacy in their e-mail. The courts that have dealt with the issue have found that no reasonable expectation of privacy exists with e-mail.

In a Pennsylvania federal district court decision issued in 1996, Smyth vs. Pillsbury Co., the court ruled that employees do not have a reasonable expectation of privacy in the contents of their e-mail communications over the company e-mail system. In that case, the employer fired the employee for transmitting inappropriate and unprofessional comments over the e-mail system, even though the employer had assured its employees that e-mail communications would remain confidential and privileged. The court stated that the company's interest in preventing inappropriate and unprofessional coments or illegal activity over its e-mail system outweighed any privacy interest the employee might have in the comments. The Pennsylvania Supreme Court has not ruled directly on whether an employer's interception of employees' e-mail is an invasion of privacy, and the Pillsbury court's restrictive view of employees' privacy rights will not necessarily be followed by all courts.

Several advocacy groups are working for employee privacy rights in the workplace, including the National Association of Working Women, the American Civil Liberties Union, the Communications Workers of America and other unions, and the Communications Privacy Rights Clearinghouse. In 1996, the ACLU started a campaign to alert Americans to the dangers posed by electronic monitoring at the workplace and to give activists the tools to bring about reform. It also is encouraging people to write to their elected officials to urge then to support workplace privacy legislation.

While courts and legislatures grapple with the issue of workplace privacy, there are ways for employers to protect their own interests while not being unfair to employees. The key is to notify employees through explicit company policies that their Internet and e-mail activities are subject to monitoring.

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