Employer Security Vs Employee Privacy

iBRIEF / eCommerce 7/25/2001

Cite as 2001 Duke L. & Tech. Rev. 0026

MONITORING EMPLOYEE E-MAIL: EFFICIENT WORKPLACES VS. EMPLOYEE PRIVACY
Employer monitoring of electronic mail constitutes an emerging area of the law that is clearly unsettled at this point in time. This iBrief demonstrates that the privacy rights of non public-sector employees are relatively unprotected by the federal and state constitutions, broad judicial interpretations of enacted privacy legislation favor legitimate employer-monitoring practices, and many of the elements of common law claims are difficult for employees to prove. INTRODUCTION ¶1 Employee use of electronic mail (e-mail) during business hours is a common characteristic of the 21st century American workplace.
The ordinary course of business exception;22 and 3. The consent exception.23 ¶ 14 The fact that the courts broadly interpret these three exceptions makes the ECPA's privacy protections illusory at best. An analysis of these exceptions will better illustrate this idea. The Provider Exception ¶ 15 The provider exception is proving to be a strong ally to employers desiring to monitor their employees' e-mail. Concerning this exception, "commentators have predicted that most private employers will be exempt from the ECPA under this exemption if they provide their employees with e-mail service through a company-owned system."24 In fact, a few courts have already applied this exception to employer e-mail monitoring. In one of the most interesting of these cases, the provider exception allowed United Airlines to monitor the online reservation system that it provided to employees in an attempt to discover falsifications by a travel agent.25 However, there is confusion as to whether private employers will be protected under the ECPA if they merely use a third-party service provider.26 In these cases, employers are not truly providing the e-mail services to their employees and would likely have to use one of the other two broad exceptions that the ECPA provides. The Ordinary Course of Business Exception ¶ 16 The ordinary course of business exception is "actually an exclusion from the definition of an 'electronic device'" under the ECPA.27 This exception has not been applied to workplace e-mail, "but based on its application in analogous contexts, such as telephone communications, it may well provide another shield for employers who engage in routine monitoring of their employees' e-mail.28 Courts have taken two approaches when applying the ordinary course of business exception to telephone communications: 1. The content approach - which permits an employer to monitor "business-related" communications but does not allow monitoring of personal communications; and 2. The