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Reading employee e-mail

By Harvey Randall, Esq.

Reading employee e-mail
Fraser v Nationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623

An employee uses his or her employer's computer equipment for personal business such as transmitting and receiving personal e-mail. Is the employee's "right to privacy" violated if the employer reviews the employee's e-mail that is stored in its computer system?

District Court Judge Anita B. Brody said no, deciding that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

The court's rationale: Such laws, including the "Stored Communications Act," are triggered only when the interception occurs "in the course of transmission" -- i.e., when the employer intercepts, and reads, the employee's before he or she as "opened it." In contrast, if the e-mail has already been read by the addressee, subsequent reading of the communication retrieved from "computer storage" by a third party does not violate wiretap statutes controlling in this case.

According to Judge Brody, "[t]he strong expectation of privacy with respect to communication in the course of transmission significantly diminishes once transmission is complete." The decision notes that while "Nationwide's retrieval of Fraser's e-mail from the Nationwide file server may in fact be ethically 'questionable' ... it is not legally actionable under the Electronic Communications Privacy Act of 1986."

Referring to the use of "company voice mail" by employees receiving personal telephone calls while at work, Judge Brody observed that e-mail is similar to voice mail at the workplace and courts have held that accessing voice mail violates wiretap laws only when it occurs prior to the recipient's having a chance to listen to it for a first time -- not when a third party retrieves the voice mail communication from storage.

A number of employers have adopted policies setting out its expectations concerning employee use of its e-mail resources. In some instances the employer has told staff members that it reserves the right to review any employee's electronic files and messages and usage to the extent necessary to ensure that media are being used in compliance with the law and with company policy. Employees are also being cautioned not assume that their personal electronic communications, whether by telephone or computer, are private and confidential.

Full post as published by New York Public Personnel Law on January 14, 2008 (boomark / email).