[1]Abdon M. Pallasch, Company Policies to Monitor E-mail Licking Edge of Electronic Envelope, CHICAGO LAWYER, August 1995, at 4.
[2]"[A]nother recent survey, according to a 1996 Dickinson Wright law firm newsletter, estimates there will be 72 million employees using e-mail to send 4.1 trillion messages." Kathleen Sibley, The E-mail Dilemma: To Spy or Not to Spy, COMPUTING CANADA, March 31, 1997 at 14. "E-mail is in use, in some capacity, in all Fortune 1000 companies, and it is expected that by the year 2000, 40 million e-mail users will be sending 60 billion e-mail messages a year." Steven Miller, E-mail's Popularity Poses Workplace Privacy Problems, BUSINESS FIRST OF COLUMBUS, Oct. 3, 1997, at 15. See also Hal Berghel, E-mail - The Good, the Bad, and the Ugly, COMMUNICATIONS OF THE ACM, April 1, 1997 at 11.
[3]"In the United States today there are close to 20 million electronic mail ("[e]-mail") users . . . . It is projected that there will be more than 40 million [e]-mail users nationwide by the year 2000 . . . . Today, 90 percent of all companies with more than 1,000 employees use [e]-mail." Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 FORDHAM L. REV. 2285, 2288 (1996).
[4]See Amie M. Soden, Protect Your Corporation from E-mail Litigation: Privacy, Copyright Issues Should Be Addressed in Policy, CORPORATE LEGAL TIMES, May 1995, at 19; Dreyer, supra note 3, at 2288.
[5]See Dreyer, supra note 3, at 2288.
[6]See Berghel, supra note 2, at 11.
[7]See id.
[8]"[M]ainframe backups also make archiving and retrieving e-mail records much easier than their paper counterparts." Dreyer, supra note 3, at 2291.
[9]E-mail and its ramifications are in part a result of its permanence. This permanence is a result of the need to backup information stored on computer systems. Issues such as reading e-mail, evidentiary uses of e-mail, and the discovery of e-mail in litigation would not exist were it not for the backing-up of computer systems. Discussing the application of the rules of evidence to e-mail, see id. at 2299-2328. See also Betty Ann Olmstead, Electronic Media: Management and Litigation Issues: When "Delete" Doesn't Mean Delete, 63 DEF. COUNS. J. 523 (1996).
[10]"In today's modern business setting, e-mail messages may include status reports, inventory lists, minutes of meetings, drafts of documents, business strategies, or records of important business decisions." Dreyer, supra note 3, at 2289.
[11]"Unlike paper documents that can be discarded easily, 'purged' electronic documents may still exist in some sort of archival media where they can stay for an indefinite period of time. Even when archived tapes are removed for reuse and the information has been finally overwritten, such documents may still be recoverable." Olmstead, supra note 9, at 526. See also Dreyer supra note 3, at 2291. "In actuality, most data can be restored unless it has been overwritten . . . and even overwritten documents can be deciphered." Marianne Lavalle, Digital Information Boom Worries Corporate Counsel: Questions Arise About Data Overload, Online Privacy, the Retrieval of Deleted E-mail and Technological Monopoly, NAT'L L.J., May 30, 1994, at B1.
[12]See John Araneo, Note, Pandora's (E-mail) Box: E-mail Monitoring in the Workplace, 14 HOFSTRA LAB. L.J. 339, 356 (1996).
[13]See FRED H. CATE, PRIVACY IN THE INFORMATION AGE 31 (Brookings Institution Press 1997); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 CAL. L. REV. 957, 1008 (1989).
[14]Cate, supra note 13, at 23.
[15]Post, supra note 13, at 1008.
[16]Id.
[17]Id.
[18]"Privacy is an essential component of individual autonomy and dignity. Our sense of liberty is partly defined by the ability to control our own lives - whether this be the kind of work we undertake, who we choose to associate with, where we live, the kind of religious and political beliefs we hold, or the information we wish to divulge about ourselves." Gary T. Marx & Sanford Sherizen, Monitoring on the Job: How to Protect Privacy as Well as Property, TECH. REV., Nov.-Dec. 1986, at 63, 65.
[19]ALAN F. WESTIN, PRIVACY AND FREEDOM 42 (1967).
[20]John C. Barker, Note, Constitutional Privacy Rights in the Private Workplace, Under The Federal and California Constitutions, 19 HASTINGS CONST. L.Q. 1107, 1108 (1992).
[21]Steven Winters, Comment, The New Privacy Interest: Electronic Mail in the Workplace, 8 HIGH TECH. L.J. 197, 201 (1993).
[22]Frank J. Cavico, Invasion of Privacy in the Private Employment Sector: Tortious and Ethical Aspects, 30 HOUS. L. REV. 1263, 1266 (1993).
[23]William L. Prosser, Privacy, 48 CAL. L. REV. 383, 391 (1960).
[24]RESTATEMENT (SECOND) OF TORTS § 652B (1977).
[25]See Winters, supra note 21, at 202.
[26]Brian D. Pedrow & Debra E. Kohn., Tampering with E-mail: Proprietary Rights and Privacy Issues, 21 LAW PRAC. MGMT., Nov.-Dec. 1995 at 36, 38.
[27]Post, supra note 13, at 1008.
[28]See Winters, supra note 21, at 201.
[29]See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).
[30]"[M]onitoring could become much more extensive in society at large. Practices developed at work can easily spill over into other areas." Marx, supra note 18, at 70.
[31]See 18 U.S.C. §§ 2510-2711 (1998).
[32]See S. REP. NO. 99-541, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555; U.S.C. §2510 (1998).
[33]S. REP. NO. 99-541, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. at 3555.
[34]The Act defined e-mail as: Electronic mail is a form of communication by which private correspondence is transmitted over public and private telephone lines. In its most common form, messages are typed into a computer terminal, and then transmitted over telephone lines to a recipient computer operated by an electronic mail company. If the intended addressee subscribes to the service, the message is stored by the company's computer "mail box" until the subscriber calls the company to retrieve its mail, which is then routed over the telephone system to the recipient's computer. If the addressee is not a subscriber to the service, the electronic mail company can put the message onto paper and then deposit it in the normal postal system. Electronic mail systems may be available for public use or may be proprietary, such as systems operated by private companies for internal correspondence. S. REP. NO. 99-541, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. at 3562.
[35]See 18 U.S.C. §§ 2510-2522, 2711
[36]S. REP. NO. 99-541, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. at 3558.
[37]Id.
[38]Id. at 5, reprinted in 1986 U.S.C.C.A.N. at 3559.
[39]Id.
[40]David Johnson, Privacy: Good Sysops Should Build Good Fences (visited Apr. 13, 1998) <http://www.eff.org/pub/Privacy/good_fences_johnson.article>.
[41]Id.
[42]See Frank C. Morris, Issues from the Electronic Workplace E-mail Communications: The Developing Employment Law Nightmare, SB07 ALI-ABA 335, 341 (1996). See, e.g., Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992) (finding a violation of the ECPA for taping an employee's phone conversations without obtaining her consent); Watkins v. L.M. Berry & Company, 704 F.2d 577 (11th Cir. 1983) (finding that there was a material issue of fact about whether an employee had consented to the employer monitoring the employee's phone calls). However, states have enacted statutes which mirror the ECPA and claims have been raised pursuant to those statutes without success, see discussion infra Part II.C.
[43]Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (3d Cir. 1996) (Steve Jackson dealt with the accessing of e-mail messages by the Secret Service on a server that had been seized as part of a raid on a computer bulletin board operator. The plaintiffs were operators of and users of the server which was used for e-mail communications and an electronic bulletin board. Many of the users' e-mail in question had not been read by the users prior to the server's seizure by the Secret Service. The court of appeals affirmed the trial court's holding that Title II of the ECPA had been violated, but not Title I.).
[44]Id. at 460-64.
[45]Id. at 459-60.
[46]Id. at 461-64.
[47]Id. at 463.
[48]Id. at 464. See discussion infra pp. 11-15 (for a discussion about the importance of the court's distinction in Steve Jackson Games that the accessing of an e-mail communication should be analyzed under the prohibitions of Title II of the ECPA not Title I).
[49]Id. at 464.
[50]See id. at 463.
[51]Because of the way most computer systems are configured, it is not likely that an e-mail message can be intercepted, prior to its passing through a server, so as to invoke Title I of the ECPA. See, e.g., U.S. v. Moriarty, 962 F. Supp. 217 (D. Mass. 1997) (holding that interception of electronic communications only applies to accessing information while in transmission).
[52]See 18 U.S.C. §2701(c) (1998).
[53]Larry O. Natt Gantt, II, An Affront to Human Dignity: Electronic Mail Monitoring in the Private Sector Workplace, 8 HARV. J.L. & TECH. 345, 364 (1995). One commentator has differentiated the business use exception from a separate service provider exception. This was done because his analysis focused upon the telephone interception cases and then the application of those cases to the issue of e-mail service providers. For the purposes of this comment, based upon 18 U.S.C. § 2701(c), there is only one exception, the business use exception. But see Jarrod J. White, E-Mail@Work.Com: Employer Monitoring of Employee E-Mail, 48 ALA. L. REV. 1079,1086-90 (1997).
[54] U.S.C. § 2701(c)(2).
[55]See White supra note 53, at 1083-84; see also Anne L. Lehman, E-Mail in the Workplace: Question of Privacy, Property or Principle?, 5 COMM. LAW CONSPECTUS 99, 103 (1997) stating: "[I]f a company that supplies e-mail service to its employees is seen as a service provider, simple authorization from the company is required to access the stored messages received and sent by its employees."
[56]Sally D. Garr, Employee Monitoring and Privacy in the Internet Age, SB53 ALI-ABA 1, 11 (1997) (citing Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir. 1992)).
[57]See id. at 9; White, supra note 53, at 1083-85; Gantt, supra note 53, at 356; David Neil King, Note, Privacy Issues in the Private-Sector Workplace: Protection from Electronic Surveillance and the Emerging "Privacy Gap", 67 S. CAL. L. REV. 441, 451-54 (1994).
[58]See Spears, 980 F.2d 1153; Watkins, 704 F.2d 577.
[59]Bohach v. City of Reno, 932 F. Supp. 1232, 1236 (D. Nev. 1996).
[60] U.S.C. § 2701(c)(1) (1998).
[61]See Ruel Torres Hernandez, ECPA and Online Computer Privacy, 41 FED. COMM. L.J. 17, 39-41 (1988); see also Pedrow, supra note 26, at 37.
[62]Pedrow, supra note 26, at 37.
[63]See Bohach, 932 F. Supp. at 1235-36.
[64]Andersen Consulting LLP v. UOP, 991 F. Supp 1041, 1042 (N.D. Ill. 1998).
[65]Bohach, 932 F. Supp. at 1237.
[66]Id. at 1236.
[67]See discussion infra pp. 14-15 (discussing that once there is a finding that a firm is a service provider of the communications service, under the exception of § 2701(c)(1) the firm is at liberty to access all stored communications of that service).
[68]Bohach, 932 F. Supp. at 1236.
[69]UOP is "a joint venture of Allied Signal Inc. and Union Carbide Corp. . . .", Elizabeth MacDonald, Workplace: E-Mail Trail Could Haunt Consultant in Court, WALL ST. J., June 19, 1997, at B1.
[70]See Andersen, 991 F. Supp. at 1041; see also MacDonald, supra note 69, at B1 (the story that caused the allegation of the ECPA violations).
[71]See Andersen, 991 F. Supp. at 1041. It is not difficult to understand Andersen's outrage at UOP for the disclosure of the e-mail messages for publication in the newspaper. Among other things contained in the messages, "consultants sent disparaging messages about each other. 'It's horrible,' one Andersen consultant wrote about a colleague. 'He has his hot, sweaty face just inches from yours, like some kind of putrid pumpkin.'" MacDonald, supra note 69, at B1.
[72]See Andersen, 991 F. Supp. at 1041, 1042.
[73]See id.
[74]See id.
[75]See id.
[76]Bohach, 932 F. Supp. at 1236.
[77]Kevin J. Baum, Comment, E-mail in the Workplace and the Right of Privacy, 42 VILL. L. REV. 1011, 1026 (1997).
[78]See White, supra note 53, at 1089; David R. Johnson, Privacy: Good Sysops Should Build Good Fences, (visited Apr. 13, 1998) <http://www.eff.org/pub/Privacy/good_fences_johnson.article>, "Those who provide electronic communications services - a category that will increasingly include most large companies . . . ."
[79]See White, supra note 53, at 1089.
[80]See 18 U.S.C. §2702 (1998).
[81]"Depending upon how the term 'entity providing an electronic communications service' is construed, employers who provide the electronic communications service that their employees use, may have unfettered right to access stored employee communications. The case law in this area is very sparse and so unclear that even legal commentators are in dispute." Garr, supra note 56, at 9.
[82]See discussion infra Part II.D.3.a (discussing the unreported case of Shoars v. Epson America, Inc., a case preceding Bohach, where the court supported this interpretation of §2701(c)(1)'s exceptions).
[83]See H.R. REP. NO. 102-1024, at 1 (1992), reprinted in 1992 WL 316386.
[84]See S. 984, 103d Cong. (1993).
[85]H.R. REP. NO. 102-1024, at 8 (1992), reprinted in 1992 WL 316386.
[86]H.R. REP. NO. 102-1024, at 13 (1992), reprinted in 1992 WL 316386.
[87]Pedrow, supra note 26, at 38.
[88]See, e.g., Laurie Thomas Lee, Watch Your E-mail! Employee E-mail Monitoring and Privacy Law in the Age of the "Electronic Sweatshop", 28 J. MARSHALL L. REV. 139, 167-68 (1994) (noting that the proposed law would not address the issue of how the PCWA's protections and policies would be affected by the ECPA); see also Araneo, supra note 12, at 356. The author notes that e-mail should not be compared directly with telephone or postal communications in addressing employer monitoring because "[e]-mail has its own identity and character, and ultimately it brings to the table new problems of employee privacy and employer monitoring." Id.
[89]King, supra note 57, at 473.
[90]Compare id. with Gantt, supra note 53, at 410.
[91]There have been several cases where e-mail has been a factor in the case, but these cases have not dealt with the central issue of who does, can and should have access to user's e-mail messages. See Lian v. Sedgwick James of New York, Inc., No. 96 Civ. 5129(DC), 1998 WL 30284, at *1 (S.D. N.Y. Jan 28, 1998) (employment defamation suit brought by an employee based upon an e-mail message sent by the employer to other employees about the terms of the former employee's termination); Owens v. Morgan Stanley & Co., No. 96 CIV. 9747(DLC), 1997 WL 793004, at *1 (S.D. N.Y. Dec. 24, 1997) (employment discrimination claim by an employee stemming from racist e-mail messages.); Donley v. Ameritech Services, Inc., No. 92-72236, 1992 WL 678509, at *1 (E.D. Mich. Nov. 16, 1992) (wrongful termination suit brought by an employee for sending an inappropriate e-mail message about a client).
[92]Restuccia v. Burk Technology, Inc. 5 Mass L. Rptr. No. 31, 712 (November 4, 1996); Smyth v. Pilsbury Company, 914 F. Supp. 97 (E.D. Penn 1996).
[93]Bourke v. Nissan Motor, Co., No. YC 003979 (Cal. Super. Ct. filed Feb, 1, 1991) (a copy of the appellate decision of July 26, 1993 can be found online at <http:www.law.seattleu.edu/chonm/Cases/bourke.html.>, (visited Apr. 13, 1998); the appellate court affirmed the trial court's decision); Flanagan v. Epson America, Inc., No. BC 007036 (Cal. Super. Ct. filed July 31, 1990); Shoars v. Epson, America, Inc., No. SWC 112749 (Cal. Super. Ct. filed Mar. 26, 1990). While it has not been reported, there was a civil suit filed in the case of Eugene Wang leaving Borland for Symantech by Wang against his former firm, Borland, for Borland's review of his e-mail messages immediately after he announced his resignation from Borland to join Symantech. See John Burgess, Criminal Probe Launched Over Trade Secrets: Software Firms Charges Executive Took Information, WASH. POST, Sept. 8, 1992, at E1; John Thackray, The E-mail is Deadlier . . . - Electronic Mail Has Added a Bizarre New Dimension to US Office Politics, THE OBSERVER, May 1, 1994, at 8. A criminal case was brought against Wang and Borland for misappropriation of trade secrets. The criminal case raised a unique issue of conflict of interest because Borland provided financial assistance to the district attorney's office in investigating the computer system of Borland. See People v. Eubanks, 927 P.2d 310, 312-14 (Cal. 1997).
[94]See Restuccia, 5 Mass L. Rptr. No. 31, at 712.
[95]See id.
[96]See id.
[97]See id.
[98]See id.
[99]See id.
[100]See id.
[101]See id.
[102]See id.
[103]See id. at 713.
[104]See id.
[105]See id.
[106]See id.; see discussion supra p. 11 (about the ECPA's "business use" exception).
[107]See id. at 714.
[108]See id.
[109]See id.
[110]Compare Restuccia, 5 Mass L. Rptr. No. 31, at 712-14, with Smyth, 914 F. Supp. at 98-100.
[111]See Smyth, 914 F. Supp. at 98.
[112]Id. at 98 n.1.
[113]Id. at 98.
[114]Id. at 99.
[115]See id. at 98.
[116]See id. at 99.
[117]See id.; Restuccia, 5 Mass L. Rptr. No. 31, at 714.
[118]See Smyth, 914 F. Supp. at 99.
[119]See Kent Greenawalt, Reflections on Holding and Dictum, 39 J. LEGAL EDUC. 431 (1989).
[120]See Smyth, 914 F. Supp. at 100-01.
[121]See id.
[122]See id. at 100 (citing Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992)).
[123]Borse, 963 F.2d at 613. The Third Circuit Court of Appeals, in a lengthy analysis of the Pennsylvania at- will employment doctrine, predicted that the state supreme court would find that termination for a refusal to submit to a urinalysis would violate public policy and be an exception to the at-will employment doctrine. However, the court was unclear whether Borse had properly stated such a claim, so they vacated the district court's order dismissing the complaint and remanded the case with instructions for Borse to amend her complaint. Id. at 626.
[124]See Smyth, 914 F. Supp. at 101.
[125]See id.
[126]Bourke v. Nissan Motor, Co., No. YC 003979 (Cal. Super. Ct. filed Feb 1, 1991) (a copy of the appellate decision of July 26, 1993 can be found online at <http:www.law.seattleu.edu/chonm/Cases/bourke.html.> (visited Apr. 13, 1998); the appellate court affirmed the trial court's decision); Flanagan v. Epson America, Inc., No. BC 007036 (Cal. Super. Ct. filed July 31, 1990); Shoars v. Epson, America, Inc., No. SWC 112749 (Cal. Super. Ct. filed Mar. 26, 1990).
[127]See, e.g., Rochelle B. Ecker, Comment, To Catch a Thief: The Private Employer's Guide to Getting and Keeping an Honest Employee, 63 UMKC L. REV. 251, 269-70 (discussing Shoars v. Epson America, Inc.); Lee, supra note 88, at 142 (discussing Shoars v. Epson America, Inc.); Gantt, supra note 53, at 359-60 (discussing Flanagan v. Epson America, Inc.); Winters, supra note 21, at 221-31 (discussing Shoars v. Epson America, Inc.); Morris, supra note 42, at 341-343 (discussing Flanagan v. Epson America, Inc., Shoars v. Epson America, Inc., and Bourke v. Nissan Motor Co.); and White, supra note 53, at 1096-97 (discussing Flanagan v. Epson America, Inc., Shoars v. Epson America, Inc., and Bourke v. Nissan Motor Co.).
[128]See Julia Turner Baumhart, The Employer's Right to Read Employee E-mail: Protecting Property or Personal Prying?, 8 LAB. LAW. 923, 944 (1992); see also Victoria Slind-Flor, What Is E-mail, Exactly?, NAT'L L.J., Nov. 25, 1991, at 3.
[129]In the case of Hill v. National Collegiate Athletic Association, the California Supreme Court stated that this right extends to private-sector employees. Hill v. National Collegiate Athletic Association, 865 P.2d 633, 641 (Cal. 1994); see also Barker, supra note 20, at 1143; Baumhart, supra note 128, at 944.
[130]See Morris, supra note 42, at 341.
[131]See Winters, supra note 21, at 223.
[132]Id.
[133]Id.
[134]Id. at 224; see also, Charles Piller, Bosses with X-Ray Eyes, MACWORLD, July 1993, at 122, "[Shoars's] attorney, Noel Shipman, Claims that by reading employee E-mail messages, Epson violated both the state constitution's privacy provision as well as a California eavesdropping statute."
[135]See Winters, supra note 21, at 226-27.
[136]Id. at 227 (citing Hernandez, supra note 61, at 39).
[137]Winters, supra note 21, at 227.
[138]See Morris, supra note 42, at 341; Gantt, supra note 53, at 397.
[139]See Morris, supra note 42, at 341.
[140]White, supra note 53 , at 1097; see also Morris, supra note 42, at 341-42.
[141]Bourke v. Nissan Motor Co., No. B068705, at *1 (Cal. Ct. App. July 26, 1993) (visited Apr. 13, 1998) <http://www.law.seattleu.edu/chonm/Cases/bourke.html>.
[142]Id.
[143]See id.
[144]Id.
[145]See id. at *3-4.
[146]See id. at *1.
[147]See id. at *3.
[148]See id.
[149]See id.
[150]Id. at *3.
[151]See id. at *4.
[152]See id.
[153]Compare Restuccia, 5 Mass L. Rptr. No. 31, at 714, with RESTATEMENT (SECOND) OF TORTS § 652B (1977); see discussion supra Part I.B.2.
[154]"For the typical private sector employee, the only general source of legal protection for unjustified employer intrusion is the common law." Pauline T. Kim, Privacy Rights, Public Policy, and the Employment Relationship, 57 OHIO ST. L.J. 671, 675 (1996).
[155]See RESTATEMENT (SECOND) OF TORTS § 652B (1977).
[156]See Smyth, 914 F. Supp. at 98; Winters, supra note 21, at 226.
[157]Smyth, 914 F. Supp. at 101.
[158]See Winters, supra note 21, at 226.
[159]Smyth, 914 F. Supp. at 98.
[160]See id. at 101
[161]Id.
[162]See id.
[163]BLACK'S LAW DICTIONARY 297, 1198 (6th ed. 1990).
[164]See Smyth, 914 F. Supp. at 98.
[165]See id.
[166]See id. at 101.
[167]Gantt, supra note 53, at 403-04.
[168]"Employees . . . tend to assume that their E-mail files have the same degree of privacy as perhaps their desks, their briefcases, or their purses. When an issue arises over management accessing someone's E-mail files, the employee is the one who feels violated." Stop Agonizing -- Implement an E-mail Privacy Policy, ELECTRONIC MESSAGING NEWS, Nov. 24, 1993; see Soden, supra note 4, at 1.
[169]"Many employees consider e-mail a modern day water cooler for gossip and discussion." Richard J. Loftus et al., Cutting Edge Tech Can be Double-edged Sword, NAT'L L.J., Nov. 3, 1997, at B11.
[170]Alan Westin in his recent examination of privacy in the workplace concluded that most people do not object to an employer using electronic monitoring when the employee is communicating directly with customers or for some direct business purpose. However, outside of this narrow area of monitoring he states, "[w]hen some pollsters have asked the public whether it is all right for employers to 'listen-in on the telephone calls of their employees,' the reactions are thoroughly predictable -- the public says no." Alan F. Westin, Privacy in the Workplace: How Well Does American Law Reflect American Values?, 72 CHI.-KENT L. REV. 271, 278 (1996). "One recent, national public-opinion survey found that eighty-one percent of Americans think employers lack the right to monitor personal telephone calls, . . . ." King supra note 57, at 441-42. "Under most circumstances, employees have a reasonable expectation of privacy regarding the contents of their desks, interoffice memos, telephone conversations, and electronic and voice mail messages." Bob Lewis, IS Survival Guide: The Feds are Going too Far with Security; You are Violating Privacy?, INFOWORLD, Oct. 14, 1996, at 64.
[171]See, Mary Curtis, A Love-Hate-Relationship: Surf Warning Your Employer Has a Legal Right to Monitor Your Computer Activity at the Office, L.A. TIMES, January 19, 1998.
[172]But see Garr, supra note 56, at 12 (the commentator suggests that the main problem with Smyth's case was the appalling and highly offensive nature of his statements in the e-mail communications).
[173]Federal courts do not have the ability to establish state law precedent, see, e.g., Lehman, supra note 55, at 111.
[174]"Because state statutes and constitutions determine the common law right to privacy, there are no real standards or guidelines that employers and employees can use when determining the legal limits of their rights. There is, however, still a remedy to the wrong." Lois R. Witt, Terminally Nosy: Are Employers Free to Access Our Electronic Mail?, 96 DICK. L. REV. 545, 569 (1992).
[175]"[T]he City, as the system provider, was free to access the stored messages as it pleased." Bohach, 932 F. Supp. at 1237; see also Thomas R. Greenberg, E-Mail and Voice Mail: Employee Privacy and the Federal Wiretap Statute, 44 AM. U. L. REV. 219, 249 (1994).
[176]See Garr, supra note 56, at 12; Gantt, supra note 53, at 373-74; Susan Ellen Bindler, Peek and Spy: A Proposal for Federal Regulation of Electronic Monitoring in the Workplace, 70 WASH. U. L.Q. 853, 871 (1992).
[177]See Restuccia, 5 Mass L. Rptr. No. 31, at 713; Winters, supra note 21, at 227.
[178]See Soden, supra note 4, at 1.
[179]See, e.g., Owens, 1997 WL 793004, at *1 (employment discrimination claim by an employee stemming from racist e-mail messages.); Donley, 1992 WL 678509, at *1 (wrongful termination suit brought by an employee for sending an inappropriate e-mail message about a client).
[180]"Take the example of the company that had employees who used company e-mail for six months to start their own competing company. They encrypted e-mail messages when they were specifically discussing stealing company property. . . . [t]he company couldn't decrypt the messages. The employees got caught because . . . [an] investigative company found a Microsoft PowerPoint presentation about their new company in the system." Emily Leinfuss, Policy Over Policing: It's Easy to Develop E-mail and Internet Policies, but Education and Documentation are Crucial to Their Success, INFOWORLD, Aug. 19, 1996, at 56.
[181]See Araneo, supra note 12, at 343.
[182]See Olmstead, supra note 9, at 523.
[183]Additionally, one commentator states that "traditional" tort claims in the context of new workplace technologies, using the new term "techno-torts" to describe such actions, are more complex and difficult for businesses to successfully litigate. See Martin C. Loesch, Recent Developments in Self-Insurance and Risk Management, 32 TORT & INS. L.J. 583, 585 (1997).
[184]Soden, supra note 4, at 19.
[185]WILLIAM S. HUBBARTT, THE NEW BATTLE OVER WORKPLACE PRIVACY 144 (1998).
[186]Araneo, supra note 12, at 357.
[187]For an extensive list of elements to consider when proposing policies see id. at 362-64.
[188]C. Forbes Sargent, Electronic Media and the Workplace: Confidentiality, Privacy and Other Issues, BOSTON BAR JOURNAL, May/June 1997, at 6, 20.
[189]DAVID R. JOHNSON ET AL., ACCESS TO AND USE AND DISCLOSURE OF ELECTRONIC MAIL ON COMPANY SYSTEMS: A TOOL KIT FOR FORMULATING YOUR COMPANY'S POLICY (1994)
[190]See id. at 3-29.
[191]See id. at 31-38.
[192]See id.
[193]Id. at 31.
[194]Id. at 37.
[195]See Pallasch, supra note 1, at 4.
[196]See Bohach, 932 F. Supp. at 1236; Andersen, 991 F, Supp. at 1043; see also discussion supra Part II.A.
[197]"[E]mployers often believe that workers have no privacy rights on the company online system. . . ." LANCE ROSE, NETLAW: YOUR RIGHTS IN THE ONLINE WORLD 179 (1995).
[198]The clearest example of this blurring between the home and the office is for people who "telecommute" or work at home during part of a work week. These people do not just take some work home on occasion but do substantive amounts of work from their home, which causes there to be less of a distinction between being "at work" and "at home." "[T]he lines between personal and business time have blurred. Personal business happens in the daytime. Employees take work home and don't charge the company for the use of their personal desks and telephones. If the company asks for the latter, it shouldn't complain about the former." Lewis, supra note 170.
[199]Post, supra note 13, at 962.
[200]See Pallasch, supra note 1, at 4. "[UPS and Baxter Healthcare Corp.] say they never read messages routinely. In fact, UPS says it has only read an employee's messages once, when an employee was suspected of accessing and reading other employees' E-mail. By monitoring messages, UPS proved its case." Linda Wilson, Addressing E-Mail Rights, INFORMATIONWEEK, Feb. 15, 1993.
[201]"Many companies sanctimoniously proclaim that because [e-mail and Internet access are] corporate resources, employees have no right to use them for personal business and should harbor no expectation of privacy. Well, yes, they are corporate resources. So are desks and interoffice mail. Does this mean employees should expect their supervisors to search through both whenever they feel like it?" Lewis, supra note 170.
[202]"[E]mployers who wish to obtain the most effective protection against employee E-mail privacy claims should publish an E-mail policy that defines the company's rights to review employee E-mail messages." Baumhart, supra note 128, at 947.
[203]"Informing employees of potential privacy intrusions, however, will not substantially alleviate the extent of unwanted workplace privacy intrusions because most employees do not bargain over working conditions in their employment positions." Gantt, supra note 53, at 407.
[204]"Under a policy prohibiting personal E-mail communications, employees will undoubtedly experience the resentment and dehumanization that monitored employees often experience on the job." Id. at 406; see also Marx, supra note 18, at 67.
[205]Post, supra note 13, at 1008.
[206]See Smyth, 914 F. Supp. at 101.
[207]See id. at 98.
[208]See id.
[209]See id.
[210]"It appears that for at least today, employers have the greater rights when it comes to monitoring conduct in the workplace. We live in a litigious society, and it is always possible that the wrong facts will hit a judge or member of congress, changing managerial rights once again. It cannot be too strongly stated that common sense should be used in deciding how to use technology for workplace monitoring. Experience shows that the greatest law in your favor is not going to persuade a jury when your facts are objectionable." Julienne W. Bramesco, Employee Privacy: Avoiding Liability in the Electronic Age, 562 PLI/LIT 515, 529 (1997).
[211]See Restuccia, 5 Mass L. Rptr. No. 31, at 712.
[212]"Some commentators might respond that explicit monitoring policies will minimize problems with privacy concerns because the policies synchronize the E-mail privacy expectations among employers and employees. Armed by their awareness of the scope of possible privacy intrusions in the workplace, employees will quantify the value of privacy in the workplace and bargain for employment that best maximizes their income potential and minimizes the workplace intrusions into privacy interests they value." Gantt, supra note 53, at 406-07.
[213]"The moral right to privacy . . . can play a vital role in the private sector employment context. A moral right to privacy is grounded in ethics, particularly the ethical principle that each person posses dignity and respect and must be treated as a worthwhile end and not as a mere means. Such a moral right can serve as a challenge to employer actions that are perceived as invasive, unreasonable or demeaning, but not legally tortious by privacy precedent." Cavico, supra note 22, at 1345-46.
[214]Vernars v. Young, 539 F.2d 966, 969 (3d Cir. 1976)
[215]One commentator has stated that: "Allowing employers to limit liability for wrongs committed against third parties using e-mail provided by the employer will encourage employers to develop company policies which employ only limited monitoring . . . ." Lehman, supra note 55, at 112.
[216]See, e.g., 42 U.S.C. §§ 2000e-2-2000e-3 (1994) (the Act forbids workplace discrimination and harassment for certain classes of people).
[217]See, e.g., The Economic Espionage Act of 1996, 18 U.S.C.A. §§ 1831-1839 (West Supp. 1998).
[218]"[Employer policies] compromise employee privacy interests by validating a new avenue by which employers may monitor employees." Gantt, supra note 53, at 405.
[219]Examples of federal regulation of private sector employment relationships include: The Employee Polygraph Act of 1988, 29 U.S.C. §§ 2001-2009 (1994) (the Act generally prohibits the use of polygraph examinations for preemployment screening or during the course of employment); The Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101-12213 (1994) (the Act prohibits discrimination against employees on the basis of their disability and requires employees with disabilities to be accommodated in the workplace); The Fair Labor Standards Act (FLSA) of 1938, 29 U.S.C. §§ 201-219 (1994) (the Act imposes minimum wage and overtime standards on most employers).
[220]See Julie A. Flanagan, Note, Restricting Electronic Monitoring in the Private Workplace, 43 DUKE L.J. 1256, 1271-80 (1994); Bindler, supra note 176, at 880-81.
[221]See S. REP. NO. 99-541, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. at 3555.
[222]See Bohach, 932 F. Supp. at 1236; Moriarty, 962 F. Supp. at 221.
[223]See Bindler, supra note 176, at 880-81.
[224]Some commentators have argued that e-mail systems are so large and contain so many messages that firms have no incentive to monitor everyone's e-mail messages. They might respond to an express consent provision such as this by stating that it is unnecessary because the shear volume of the systems is a natural constraint upon firms to do large scale monitoring of users' e-mail messages. See, e.g., PAUL M. SCHWARTZ ET AL., DATA PRIVACY LAW 372 (Michie 1996).
[225]This idea is called transparency which is one of the concepts underlying the European data protection principles. Professors Paul M. Schwartz and Joel R. Reidenberg, in their book Data Privacy Law, have summarized transparency as the idea that monitoring activities must be "structured in a manner that will be open and understandable." The two European components to transparency are: "notice to individuals of the collection of personal information . . . . [and] consent from individuals . . . ." Id. at 15.
[226]In his article about privacy and health care information, Professor Paul M. Schwartz makes a similar argument about the way in which his proposed statutory solution would establish "a general default rule." Supporting his proposition, Professor Schwartz cites to "the contracts jurisprudence of Ian Ayres and Robert Gertner" where they "have argued that '[s]etting a default rule that least favors the better informed parties creates an incentive for the informed party to bring up the relative contingency in negotiations.'" Professor Schwartz links this idea to his statutory proposal for health care data stating: "This default rule seeks to maximize both the efficient use of information that is already collected and the necessary negotiations between concerned parties regarding use of these data." Paul M. Schwartz, Privacy and the Economics of Personal Health Care Information, 76 TEX. L. REV. 1, 59 (1997).
[227]"[P]rivacy is best protected when monitoring is minimally intrusive, is directly relevant to job performance, and is visible. . . . Highly intrusive forms of checking that are not directly related to work output should be restricted to situations where there are some grounds for suspicion." Marx, supra note 18, at 72.
[228]United States v. Lopez, 514 U.S. 549 (1995) (finding that Congress's commerce clause power was too attenuated in enacting the Gun-Free School Zones Act of 1990). Internet and intranet e-mail systems have become integral to the way in which most firms transact their daily business, so much so that just because a communication may not cross an interstate boundary the communications system still has an impact upon the way in which that firm transacts its business. For a discussion about the possible application of the Commerce Clause to the regulation of computer bulletin boards in the context of the regulation of cyberporn, see Glenn Harlan Reynolds, Virtual Reality and "Virtual Welters": A Note on the Commerce Clause Implications of Regulating Cyberporn, 82 VA. L. REV. 535, 537 (1996).