Reading Your Every Keystroke: Protecting Employee E-Mail Privacy
Wesche, Todd M., The Journal of High Technology Law
Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. (1)
Employees in the private workforce currently enjoy no privacy in their electronic mail communications. Legal doctrines, which seem to recognize the right of privacy for employees, have been advocated since 1890 when Warren and Brandeis wrote their seminal article The Right to Privacy. (2) Even though there has been a general trend to recognize privacy in various aspects of American life, the courts have been wary to extend that right very far into the workplace. To date, no court has considered the tort of intrusion into seclusion to encompass the right to private e-mail communications in the private workplace.
Employers have begun monitoring their employees e-mail communications in an effort to stem liability for abuses of e-mail. Employers have found that the increasing use of e-mail has increased vulnerability to corporate espionage and liability for fostering a hostile work environment. Employers believe that monitoring is necessary to discourage such activity and to limit their liabilities. Monitoring is detrimental to employee privacy and creates unnecessary stress that has a direct negative impact on employees' emotional and physical health.
Employee privacy is not sufficiently protected by the law. From the free press of the 1800s to the Internet of today, technological advances have increased invasion of personal privacy. Current legislative efforts fall short of adequately protecting employee privacy. The common law fails to recognize such invasions as actionable. New legislation is needed to address employee privacy and the common law should recognize a new tort cause of action for invasion of employee privacy. If the law cannot or will not change to meet these needs, employees need to protect their privacy using encryption technology.
What is Privacy?
In order to understand what the right to privacy is, one must understand the concept of privacy. Authors cannot seem to agree on any one definition. Warren and Brandeis echo Judge Cooley's definition of "the right to be let alone." (3) Lawrence Lessig supports the notion that privacy is the power of control over personal information and what can become known by others about you. (4) Privacy can also be defined by what it does: it protects our personhood, which we believe must remain sacrosanct. (5) The basic concept of privacy, distilled from these various authors, seems to be the right of the person from whom information is desired to exclude unwanted acquisition of personal information by others. (6)
The constitutionally protected right of privacy was derived from the penumbra of other protections found in the Bill of Rights. (7) Such rights, however, generally cannot be enforced against non-governmental entities. While employees still maintain their Fourth Amendment rights against unreasonable searches and seizures by state actors, these protections do not exist where the alleged infringer is a private actor. (8) To find a remedy for private invasions of privacy, one must turn to common law tort.
A History of the Right of Privacy
The right of privacy in the common law, specifically in tort, had not been eloquently stated until 1890, when Warren and Brandeis assembled a patchwork of cases that seemed to support a notion of a privacy right in the common law. (9) From these cases, Warren and Brandeis developed the first serious discussion of the right of privacy in American jurisprudence. To understand what the right "to be let alone" (10) meant to Warren and Brandeis, one must look at the world in which they lived.
It was the mid-to-late 1800s. The Civil War had ended a few years earlier, and America was in the process transforming and advancing technologically, especially in the press. …