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photo: TOOLBOX STUDIOS (ILLUSTRATION)
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You’ve Got Rights
By DIONNE SEARCEY Big Brother is watching. But is he allowed? Corporations routinely put their employees on notice that email messages sent on company accounts, or company time, are subject to monitoring. But recent court cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically.
Driving the change in how these cases are treated is a growing national concern about privacy issues in the age of the Internet, where acquiring someone else’s personal and financial information is easier than ever. GET BACK TO WORK In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corp- Now, courts are increasingly taking into account whether employers have explicitly told their employees how their email is monitored. That was what happened in a case last year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent during work hours, but on a personal account, wouldn’t be read by her employer. And last year, a federal appeals court in San Francisco came down on the side of employee privacy in a case involving whether an employer can read an employee’s text messages. The case is on appeal to the U.S. Supreme Court. Lawyers for corporations argue that employers are entitled to take ownership of the keystrokes that occur on work property. In addition, employers fear that productivity drops when workers spend too much time crafting personal email messages. “Employers are right to expect that their employees, when they are paid for their time at work, are actually working,” says Jane McFetridge, a lawyer who handles employment issues at the law firm Jackson Lewis. More corporations are monitoring employees’ email traffic. In a survey of 220 large U.S. firms last year, 38% of companies said they employ staff to read or otherwise analyze the content of outgoing email, up from 29% last year. More companies also say they are worried about information leaks: Thirty-four percent of respondents said their businesses had been affected by the exposure of sensitive or embarrassing information. The growing concern about security and privacy comes as expanding technology blurs the line between the personal and the professional. “Computers are becoming recognized as being so much a part of the ongoing personal as well as professional life of employees and everyone else that courts are more sympathetic all the time to granting greater recognition to privacy,” says Floyd Abrams, a First Amendment attorney. SHE’S GOT MAIL Employees often assume their communications on personal email accounts should stay private even if they are using work-issued computers or smart phones. But in most instances when using a work device, emails of all kinds are captured on a server and can be retrieved by an employer. Still, in some cases courts are ruling that unless employers have explicitly told the employee they will monitor email, they don’t have the legal right to do it—even if the email in question was a personal one sent using a work account, rather than a personal address. In one case last year, Bonnie Van Alstyne, a former vice president at Electronic Scriptorium, a data-management company, was in the thick of a testy legal battle with the company over employment issues when it came to light that her former boss had been accessing and reading her personal AOL email account. The monitoring went on for more than a year, continuing after Ms. Van Alstyne left the company. Ms. Van Alstyne sometimes used her personal email account for business purposes, and her supervisor said he was concerned that she was sharing trade secrets. Ms. Van Alstyne sued Mr. Leonard and the company for accessing her email without authorization. A jury sided with her, and the case eventually was settled. Nicholas Hantzes, a lawyer for the company and Mr. Leonard, said employers could learn from the case that to avoid legal tangles they “should do everything they can to discourage employees from using personal email for business purposes.” —Sarah Needleman contributed to this article.
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What employers and workers said about online privacy