Not that long ago I blogged, Is Einstein Reading Your Email for the Government? The issue there was email and the government’s argument about its right to read it. In short, they suggest you don’t have a reasonable expectation of privacy in your email sent to (or read by) government employees. In sum, while computer users generally have a legitimate expectation of privacy in the content of Internet communications (such as an e-mail) while it is in transmission.
The government argues there are things they can do to eliminate a person’s reasonable expectation of privacy and thus remove any of email’s privacy protections. It stands to reason that if certain things and conduct implemented by the government can remove privacy protections, then why not employers, too?
A recent Wall Street Journal article, Some Courts Raise Bar on Reading Employee Email, Companies Face Tougher Tests to Justify Monitoring Workers’ Personal Accounts; Rulings Hinge on ‘Expectation of Privacy’ was summarized by Debra Cassens Weiss in an ABA Journal post, May Employers Monitor Personal E-Mail? Cases Turn on Disclosure.
The articles and comments at each post raise good points. Some comments from Weiss’ post touch upon, email retention policies and duties to preserve email as evidence, otherwise privileged communications (for example, an email to your attorney), ownership or control of the computer, private vs. company email, and more.
Nonetheless, the takeaway lesson for employers sounds a lot like the government’s arguments about Einstein 2.0, be very explicit in informing your employees about your monitoring activities and those employees don’t have a reasonable expectation of privacy anymore. Thus, as an employer, if you don’t have an email and electronic communications policy, then it’s time to consistently adopt, implement, and enforce one. While this is no guarantee that you are on safe ground in monitoring all emails, it appears to be the direction things are heading.
As for employees, you should know what monitoring is taking place at your work. Take the time to review the email and other company policies and to understand what each means. Also, think twice before sending that email with your resume attached from your office computer or before checking your personal email while at work or on a work computer. Stop, think, and remember–there’s a good chance your boss, as well as big brother, maybe watching what you send and what you read.
While this post discusses email, don’t forget about blogs, comments, tweets on Twitter, text messages, Instant Messages (IM), or others, too.
