Now that computer online services are becoming more prevalent in the workplace and accessible by an increasing number of employees, what privacy rights does an employee have in his or her personal e-mail or internet access? To what may an employer rightfully have access?
Suppose you are a state employee, at work on your lunch break, and you decide to “surf the web” on your PC. Is the state entitled to place restrictions on the information you may access? Some might argue that the First Amendment right to freedom of expression should prevent interference from the state. Others would argue that the state, as your employer, has the authority to regulate the activities of its employees.
This issue recently came before the United States Court of Appeals for the Fourth Circuit. Six professors employed by various public colleges in Virginia challenged the constitutionality of a Virginia law which prohibited state employees from accessing sexually explicit material on computers owned by the state. They argued that such restrictions on their ability to access information would impede bona fide research. The lower court agreed holding that the Act unconstitutionally infringed the First Amendment rights of state employees. The state appealed, and the Fourth Circuit reversed the lower court’s decision and upheld the Virginia law. The Circuit Court pointed out that the materials in question were not completely banned from state employees, for the employer could permit access if it deemed such information was required by a legitimate research project. The rationale behind the decision is that the government, as an employer, has a right to supervise on-the-job activities of its employees.
The same principle applies to private businesses and the personal e-mail of employees. Many employees feel that their e-mail on company computer systems is, or at least should be, private. However, the Electronic Communications Privacy Act (“ECPA”) affords no such protection to an employee’s electronic messages on company lines. While the ECPA prohibits unauthorized access to electronic messages in storage, and unauthorized interception of messages in transmission, it does not currently apply in the employer-employee context. The rationale is that the company owns the system and may regulate its use as it sees fit.
Problems may arise when an employer, without the benefit of an established privacy standard for personal e-mail, views a personal message of its employee and reprimands the employee for abusing his or her online privileges, or even dismisses the employee based on the content of the message. How can an employer avoid potential liability if it deems it necessary to monitor the e-mail of its employees? Employers should establish a written company policy on the matter, and inform employees that their online messages may be monitored.
We can expect to see more cases on this delicate subject as the courts continue to wrestle with privacy in cyberspace.
Suppose you are a state employee, at work on your lunch break, and you decide to “surf the web” on your PC. Is the state entitled to place restrictions on the information you may access? Some might argue that the First Amendment right to freedom of expression should prevent interference from the state. Others would argue that the state, as your employer, has the authority to regulate the activities of its employees.
This issue recently came before the United States Court of Appeals for the Fourth Circuit. Six professors employed by various public colleges in Virginia challenged the constitutionality of a Virginia law which prohibited state employees from accessing sexually explicit material on computers owned by the state. They argued that such restrictions on their ability to access information would impede bona fide research. The lower court agreed holding that the Act unconstitutionally infringed the First Amendment rights of state employees. The state appealed, and the Fourth Circuit reversed the lower court’s decision and upheld the Virginia law. The Circuit Court pointed out that the materials in question were not completely banned from state employees, for the employer could permit access if it deemed such information was required by a legitimate research project. The rationale behind the decision is that the government, as an employer, has a right to supervise on-the-job activities of its employees.
The same principle applies to private businesses and the personal e-mail of employees. Many employees feel that their e-mail on company computer systems is, or at least should be, private. However, the Electronic Communications Privacy Act (“ECPA”) affords no such protection to an employee’s electronic messages on company lines. While the ECPA prohibits unauthorized access to electronic messages in storage, and unauthorized interception of messages in transmission, it does not currently apply in the employer-employee context. The rationale is that the company owns the system and may regulate its use as it sees fit.
Problems may arise when an employer, without the benefit of an established privacy standard for personal e-mail, views a personal message of its employee and reprimands the employee for abusing his or her online privileges, or even dismisses the employee based on the content of the message. How can an employer avoid potential liability if it deems it necessary to monitor the e-mail of its employees? Employers should establish a written company policy on the matter, and inform employees that their online messages may be monitored.
We can expect to see more cases on this delicate subject as the courts continue to wrestle with privacy in cyberspace.
– Denise Turner