Academic journal article SRA Journal

Reducing Risky E-Mail: There Is No Such Thing as E-Mail Privacy

Academic journal article SRA Journal

Reducing Risky E-Mail: There Is No Such Thing as E-Mail Privacy

Article excerpt


Today's professionals are required to process, analyze, and use ever escalating amounts of electronic communications. They are challenged to determine how to handle and sort this information. They must determine its value, move needed information quickly to others, and decide which information will be stored locally for future use. They are challenged to perform these tasks in a manner that supports effective working relationships and their employer's interests. Meanwhile, in the current environment of lawsuits focusing on corporate liability, some lawyers' sole practice is to search corporate files for evidence of careless and damaging electronic communications.

Most of us view electronic mail (e-mail) as a quick, cheap, and efficient method of moving information from our desktop to others worldwide. Typically, we give little thought to the potential effect of these communications on recipients, employers, or ourselves. Most employees assume these electronic communications are private, benign, and protected from snooping.

In truth, electronic communication is a cold medium capable of doing damage. It lacks the nonverbal effect of face-to-face discussions or the inflection cues of telecommunications. As such, it carries the potential for unintended consequences (erroneous addressing, embarrassing forwarding of confidential information, content that is misinterpreted or perceived as harassment, unanticipated recipients). When used carelessly, e-mail can result in misunderstandings, or expose the employer to legal action. Therefore, as a professional in research administration, you must understand: (a) the potential effect of your electronic communications, (b) your obligations to protect your employer from legal exposure, (c) the limits on your legal rights to privacy in your corporate communications, and (d) steps you and your employer can take to minimize risk while using this new communications tool.


Knowing e-mail's potential harm and your limited privacy rights starts with understanding the medium's privacy laws.

Our culture values and expects privacy in written communications. This has led many Americans to believe that, like a sealed letter, e-mail communications are private. Accessed by password, users often mistakenly view e-mail as a closed communication between a sender and a receiver. In reality, e-mail is more analogous to a postcard-the author has little control over who reads or receives it. Because it is produced with corporate resources, transmitted e-mail content is considered a corporate communication for which the corporation can be held liable. Thus, the law permits employers to safeguard their interests through permitting full access to employee e-mail.

Historically, the right to privacy has been as central to the American culture and spirit as that of self-determination and rugged individualism. Earlier this century, Judge Louis Brandeis described privacy as the "right to be left alone" (Reagan, 1986).

While the privacy assumption may exist within the nation's spirit, the Constitution does not specifically refer to a right to privacy. Instead, the Supreme Court has accepted arguments that the right to privacy is implied. This was first noted in 1966 when the Court held that "the First Amendment has a penumbra where privacy is protected from certain governmental intrusion" (Cushman, 1966). Since then, the Court has focused on the Fourth and Ninth Amendments to assert privacy rights. The Ninth Amendment affirms that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" (Emanuel, 1986). The implied right to privacy of one's person was promoted in the Supreme Court's interpretation of the Fourth Amendment, which stipulates that the people have "the right to be secure in their persons . . . against unreasonable search and seizure . …

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