Business Law 101 / PRIVACY AND EMAIL

By Albert L. Kelley

When can you read your employee’s personal e-mail? The answer is surprising. Various circumstances can arise in the work place which may allow employer access to employee e-mail. If the employee is using the business e-mail system for personal correspondence, employers may monitor e-mail to assure “that the system is not being used in a way that may be disruptive, offensive to others or harmful to morale.” As an example, the employer may monitor e-mail to ensure that the employees are not transferring illegal or immoral material. In addition, employers may review e-mail in connection with the reasonable investigation of possible employee misconduct. If the company works with sensitive or confidential information, they may monitor e-mail to ensure that careless or disloyal employees are not disclosing such information to competitors.

Employees, however, are not without remedies which protect their communications from illegal monitoring by their employers. In 1986, the Electronic Communications Protection Act (CPA) was drafted to clarify the federal privacy laws based on the emerging telecommunication technologies. The CPA creates both civil and criminal liability for the intentional interception and disclosure of any wire, oral or electronic communication. “Interception,” as defined by the statute, is “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” While this seems to give the employee a great deal of protection, there are three exceptions under which an employer may avoid liability under this statute: (1) the consent exception; (2) the business extension exception; and (3) the provider exception.

Under the consent exception, an employer may monitor an electronic communication so long as one of the parties to the communication has consented to being monitored. There is no requirement that the other recipient consent or even know of the monitoring. The employer’s interception of the e-mail, however, must not exceed the scope of the employee’s consent. In addition, an employee’s knowledge of the employer’s monitoring capability alone is insufficient to be considered implied consent. The employer must specifically inform the employees of the extent and circumstances under which e-mail communications will be monitored.

The business-extension exception allows monitoring of employee e-mail if the employer establishes a business-related reason for such monitoring. Under this very broad exception, the employer may monitor communications in the ordinary course of business, without being in violation of the CPA, so long as the employer can articulate a reasonable business purpose for the interception.

The final exception is called the “provider exception” which grants providers of an electronic communication service the right to monitor e-mail communications if the monitoring is needed to protect the provider.

To protect themselves from liability, employers should develop and adopt clear and concise policies and procedures regarding the use of company computers, specifically e-mail. These policies should state that the use of the computer system is limited to “company business” and that the employee has no reasonable expectation of privacy in the electronic messages and information transmitted, received and stored on and/or through the company’s computer system. Each employee should be required to sign these policies.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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