Mailer Daemon: Unable to Deliver Message Judicial Confusion in the Domain of E-Mail Monitoring in the Private Workplace

By Ebert, Rebecca | The Journal of High Technology Law, Annual 2002 | Go to article overview
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Mailer Daemon: Unable to Deliver Message Judicial Confusion in the Domain of E-Mail Monitoring in the Private Workplace


Ebert, Rebecca, The Journal of High Technology Law


I. INTRODUCTION

American employees have long been deluded as to the depth of privacy protection in the United States. The common perception is that privacy is a fundamental right. (1) The truth is that the right to be let alone is a modern invention: an 1890 Harvard Law Review article initiated the modern day torts of privacy. (2) The privacy tort of intrusion upon seclusion was often relied upon as a common law basis of protection for wronged private employees in the pre-technological boom era. (3) Despite the growing awareness of the need for privacy protection in this country, close to 78% of employers are practicing intrusive electronic monitoring techniques. (4) Employee privacy protections in the workplace under intrusion upon seclusion are being narrowed by the almost complete rejection of plaintiff claims against private employers for monitoring electronic communications. (5) The rules for private employees and those for public employees have developed independently of one another. (6) Based upon which sector the employee works in, the laws are different, the protections are different and the judicial standards are different. Courts were able to keep this relatively clear in the past (when electronic communications were harder to monitor), but with the introduction of e-mail, virtually unrestrained e-mail monitoring and the numerous civil cases that have developed from that monitoring, many judges seem to be confused as to which standard to apply. (7) Of the cases reviewed in this paper, no court applied the correct standard by which to find an intrusion upon seclusion in the private workplace. (8) The courts in these cases looked at the invasion under the light of whether or not there existed a reasonable expectation of privacy, the test for the Fourth Amendment, available only for invasions by the state, not invasions by a private employer. (9) The correct test, whether the intrusion is highly offensive to the reasonable person, would possibly render a very different result. (10) Judicial confusion is leaving employees (who have brought suit in civil court under the common law) with virtually no protection against employers who monitor their electronic communications. (11) Courts are decreasing the amount of protection available to American employees because electronic communications are so prevalent and easily scrutinized. Courts are concluding that ease of access should somehow translate into an employee having no reasonable expectation of privacy. (12) Intrusion upon seclusion must be reexamined and possibly reapplied to reflect the impact of Internet access and e-mail use in the workplace. (13)

Part II first reviews the private/public employee privacy protection dichotomy. It then reviews the Federal statutory provision regarding interception of electronic communications and the Fourth Amendment protections for public employees. Part II further explores the history and charts the growth of the common law right to privacy and the tort of intrusion upon seclusion and examines the tort's application across other workplace-related intrusions. It also briefly chronicles the rise of advanced network technology in business, up to current day standards. Part II will show that the Fourth

Amendment legal standard of a reasonable expectation to privacy is being applied to private cases. Part III attempts to analogize e-mail to phones and traditional postal mail to prove that e-mail requires a different level of scrutiny in invasion of privacy cases. Further, Part III considers the high level of judicial confusion involved in decisions on e-mail intrusion upon seclusion cases. Part III takes into consideration the ever-changing workplace and proposes an appropriate common law model by which to adjudicate intrusion cases in the workplace and what the elemental test should reflect. This paper concludes that, in an invasion of privacy context, more protection of e-mail and other types of electronic communication is necessary to advance the level of privacy protection in the private workplace.

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Mailer Daemon: Unable to Deliver Message Judicial Confusion in the Domain of E-Mail Monitoring in the Private Workplace
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