Intellectual Property Law

Another Court Recognizes an Expectation of Privacy Over E-mail

By paul

From National Economic Research Associates, Inc. (”NERA”) v. Evans, 21 Mass.L.Rptr. 337 (Mass. Super. 2006):

NERA contends that any reasonable person would have known that the hard disk of a computer makes a ?screen shot? of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of ?screen shots? from private Internet e-mail accounts on a computer’s hard disk.

Furthermore:

The bottom line is that, if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. all such e-mails are stored on the hard disk of the company’s computer in a ?screen shot? temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.

Full post as published by BC Law Intell. Prop. & Tech. Forum on November 26, 2007 (boomark / email).