Some Courts Raise Bar on Reading Employee Email

[question everything]

NOVEMBER 19, 2009

Some Courts Raise Bar on Reading Employee Email
Companies Face Tougher Tests to Justify Monitoring Workers' Personal Accounts; Rulings Hinge on 'Expectation of Privacy'

By DIONNE SEARCEY
WSJ

Big Brother is watching. That is the message corporations routinely send their employees about using email. But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically. Driving the change in how these cases are treated is a growing national concern about privacy issues in the age of the Internet, where acquiring someone else's personal and financial information is easier than ever.

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In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property. Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read. And last year, a federal appeals court in San Francisco came down on the side of employee privacy, ruling employers that contract with an outside business to transmit text messages can't read them unless the worker agrees. The ruling came in a lawsuit filed by Ontario, Calif., police officers who sued after a wireless provider gave their department transcripts of an officer's text messages in 2002. The case is on appeal to the U.S. Supreme Court. Lawyers for corporations argue that employers are entitled to take ownership of the keystrokes that occur on work property. In addition, employers fear productivity drops when workers spend too much time crafting personal email messages.

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Many workers log in to personal email accounts from the office. In a 2009 study by the Ponemon Institute, a Traverse City, Mich.-based data-security research firm, 52% of employees surveyed said they access their personal email accounts from their work computer. Of those individuals, 60% said they send work documents or spreadsheets to their personal email addresses. Data security experts say such actions could invite viruses or security leaks. More corporations are monitoring employees' email traffic. In a June survey of 220 large U.S. firms commissioned by Proofpoint Inc., a provider of email security and data loss prevention services, 38% of companies said they employ staff to read or otherwise analyze the content of outgoing email, up from 29% last year. More companies also say they are worried about information leaks: Thirty-four percent of respondents said their businesses had been affected by the exposure of sensitive or embarrassing information, up from 23% in 2008.. Still, in some cases courts are finding that unless they have explicitly told the employee they will monitor email, they don't have the legal right to do it -- even if the email in question was a personal one sent using a work account, rather than a personal address.

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In another case this year, Bonnie Van Alstyne, a former vice president of sales and marketing at Electronic Scriptorium Ltd., a data-management company, was in the thick of a testy legal battle in Virginia state court with the company over employment issues when it came to light that her former boss had been accessing and reading her personal AOL email account. The monitoring went on for more than a year, continuing after Ms. Van Alstyne left the company. Ms. Van Alstyne sometimes used her personal email account for business purposes, and her supervisor said he was concerned that she was sharing trade secrets. The supervisor, Edward Leonard, had accessed her account "from home and Internet cafes, and from locales as diverse as London, Paris, and Hong Kong," according to legal filings in the case. Ms. Van Alstyne sued Mr. Leonard and the company for accessing her email without authorization. A jury sided with her, and the case eventually settled.

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http://online.wsj.com/article/SB125859862658454923.html (subscription)

[Better Today]

1. Me? I'm old, so the idea that I need to do personal crap from work just isn't there.

I'm not saying I've never made a personal call from work, but it is for necessity only. Check on drs appt, confirm kids got home, etc. Almost never longer than 2-3 minutes and then only occasionally. To this day, I still do not take my cell phone into an office I'm working at (well to this day last year, been unemployed a while), nor do I send personal emails from work. During break or lunch, I go out and check for messages and take care of anything then. The other thing folks seem to do alot nowadays that I just wouldn't tolerate as a supervisor is the whole tweeting and previously the IM'ing. BTW, I was always one that got really pissed when co-workers spent a lot time on the phone for personal issues back when phones were the only way to do so.

I guess I'm just old, seems when someone hires me to work, they want my attention on their issues and not my own. I fear that even though I generally hate the whole corporatist mindset, on this issue I would side with the businesses/employers. Personal electronic attachments during work hours seems wrong except in a few cases and for a few issues.

[Robb]

2. There is that.

Pretty sensible, actually. :D

I remember a city manager I knew way back, who told his employees the best rule I ever heard of for inter-office email (bearing in mind this was a government entity and subject to Sunshine laws and what-not):

"Don't send any email that you wouldn't feel comfortable seeing reprinted on the front page of the local newspaper."

...It's kept his office out of trouble for years, and would've saved a bunch of trouble for neighboring municipalities if followed. :D

[Better Today]

3. I know a lot of folks comment about the ever-attached workers/employees

with their blackberries and what not. . . work following them everywhere and all... but I see much more of the opposite, work being interrupted during work hours for personal crap. I rarely see anyone who actually answers electronic business contacts in the evenings, but they always stop everything to gossip with their BFFs during the day.