Employer’s Right to View E-Mails vs. Employee’s Right of Privacy

With more and more workers relying on e-mail and other forms of electronic communication, there is a natural tendency to occasionally use the company e-mail for personal matters.

In earlier issues of On Law, we summarized the employer’s right to view e-mails vs. the employee’s right of privacy. The rule has been: provided the employer provides the employee with notice that an employee’s e-mail at the office does not have an expectation of privacy and the employer may, for business necessity, review employee e-mails and voice mails on the company system, the employee has no right of privacy. However, in the absence of a company policy, the rule has been that an employer does not have a right to view employee e-mails or listen to saved voice mails in the office.

Employers frequently develop a policy that allows them to enter stored electronic communications as a matter of business necessity, such as when the employee is on vacation, out of the office or even momentarily indisposed (such as during a lunch hour) and important information must be redacted for immediate action.

However, a recent federal court decision could give e-mail users broad new privacy protections against the government use of private e-mails. On June 18, 2007, the Sixth Circuit Court of Appeals in Ohio, which includes Michigan, held in Warshak v United States that Internet users had a reasonable expectation of privacy in the content of personal e-mails being stored by Internet service providers, such as Yahoo and Google. The decision, which has been categorized as “blockbuster,” was the first to recognize a wide constitutional right to privacy in personal e-mails. Although the ruling only applies in the Sixth Circuit, if followed by other circuits in the federal system, the case could shift the debate in the unsettled area of Internet privacy law.

The three person panel of the Sixth Circuit Court of Appeals held a lower court order which found federal investigators in an Ohio fraud investigation had overstepped their constitutional power by obtaining e-mails from an internet service provider without a warrant. The Court stated: “It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”

The 1986 federal Stored Communications Act allowed investigators to obtain e-mails that have been stored for more than 180 days by a service provider if the e-mails are relevant to an ongoing criminal investigation B a standard that makes it easy for the government to read personal e-mails. Investigators typically obtained the e-mails through the service providers that store the e-mails, rather than the e-mail user.

But the Sixth Circuit decided on June 18th that the Constitution granted Internet users greater privacy protections B requiring investigators to either get a warrant, give the e-mail user the chance to contest the search or show the Internet service provider agreement gave e-mail users no expectation of privacy.

Had the service provider given notice to the e-mail users that there was no expectation of privacy and that the service provider would surrender personal e-mails upon request and without warrant, this decision would likely have gone differently. The Court placed strong reliance on the user=s expectation of privacy. Presumably, and notwithstanding the June 18th decision of the United States Court of Appeals, employers can still review employees= voice mails and e-mails stored in the company system as long as there is an announced company policy with notice to each employee that the employer periodically and regularly reviews e-mails in the interest of compliance, customer service review or to obtain necessary information stored electronically.

Therefore, each employee should be cautioned to learn the company policy and heed the notices provided by the employer with regard to stored electronic information, either on voice mail or on e-mail, and each employer should be similarly cautioned on the compliance requirements of establishing a company policy and the required notice provisions before and after events where the employer finds it necessary to listen to an employee’s voice mails or read stored e-mails on the company system.

Although the June 18th case involved the government investigating a criminal matter, observers from the major media with legal affairs analysts and commentators from various law schools have concluded that the ruling could have a wide-ranging impact and that it raised a constitutional issue that could eventually find its way to the United States Supreme Court.

“Whether or not you have a constitutional right of privacy in your stored e-mail has been a dangerously open question over the past twenty years, particularly in recent years when so many of us store all of our personal e-mail with our web-mail providers,” in the opinion of a staff lawyer with the Electronic Frontier Foundation, which organization filed a Friend of the Court brief in the case.

The Constitution generally provides little protection to personal information that is being held by a third party, such as banks. However, in an employment situation, the employer is invading its own technological system developed and employed for business purpose to invade information related to an employee on that employer’s personal electronically stored system, such as voice mail or e-mail, rather than through a third party, such as a bank or internet service provider. Accordingly, courts may distinguish business necessity in the office environment where there is a lesser expectation of privacy, particularly where the employer has a compliance policy and notice practice understood by its employees.

As the law develops, employers should be cautioned about entering an employee’s e-mail or voice mail without consulting with their counsel, and employees should be similarly counseled against expectation of privacy in all circumstances regarding their personal affairs on company electronically stored systems.