Think before You Type: A Look at Email Privacy in the Workplace
Hornung, Meir S., Fordham Journal of Corporate & Financial Law
Email has rapidly become the predominant method of communication for companies around the nation and around the globe, and most experts agree that it has changed the workplace for the better.1 With the ability to widely transmit large amounts of data instantaneously, email has emerged as an essential tool for increasing productivity and efficiency in the workplace.2 One benefit email has over telephone or written communications is that all email messages are logged and recorded for future reference. However, the basic attributes of email that have vastly enhanced corporate communication have also led to a multitude of unexpected difficulties for employers. Among the problems that the escalating use of email has caused are "increased [employer] vulnerability to corporate espionage and liability for fostering a hostile work environment."3
Since email and other electronic communications are highly valuable assets to companies, employers have chosen to monitor their use rather than succumb to the difficulties and remove the technology altogether. Employers believe that monitoring is necessary both to discourage illicit activity and to limit liability. The problem that monitoring presents for employers is that it "is detrimental to employee privacy and creates unnecessary stress that has a direct negative impact on emotional and physical health of the employees,"4 which can have a detrimental effect on work product.
The advent of email monitoring in the workplace has spawned a debate over the propriety of such practices, pitting employers' interest in preventing misuse of their computer resources against employees' expectation of privacy in their electronic communications. The argument over computer surveillance has been further fueled by the covert nature of most email monitoring programs.5 Employees claim that without some restriction on an employer's ability to monitor email, there will be no privacy protection left in the workplace.6 However, employers support their claim that monitoring is necessary by pointing to the vast amount of litigation that has resulted from the unmonitored use of employee email. The debate rages on as to whether it is moral, ethical, and, most importantly for purposes of this paper, whether it is legal for employers to surreptitiously monitor the email of their employees.
This paper will attempt to analyze the laws pertaining to workplace privacy and apply these laws to the context of email monitoring by employers. Part I will be a discussion of the background of the right to privacy as it relates to the workplace. Part II will discuss the background of employer monitoring, its history, and the modern monitoring practices. Part II will also discuss the reasons employers monitor their employees' email communications and the arguments the employees have against such monitoring. Part III will explain the common law invasion of privacy requirements, the federal statutory requirements, and the different types of email systems that currently exist. Part IV will use the courts' analyses of email cases in order to derive general rules for determining when employers should be liable for privacy violations. Part V will briefly outline various state approaches to the email privacy question and address a variety of proposed legislation on the subject.
I. RIGHT TO PRIVACY IN THE WORKPLACE
Employees' distaste for monitoring is grounded in the historic right to privacy that exists in our nation.7 The United States Constitution may hint at this right to privacy, but it was given shape in an article written in 1890 by Samuel D. Warren and Justice Louis D. Brandeis. These esteemed authors proclaimed that "[r]ecent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual... the right 'to be let alone.'"8 Warren and Brandeis knew that society and the workplace were constantly advancing and perpetually improving the way we live and work. …