Simply stated, courts in the United States tend to favor the employer in workplace-surveillance cases. For that reason, employees should always use good judgment when logging onto the Internet and sending e-mails. Choose your words carefully; you never know who might read your correspondence.
Under the Electronic Communications Privacy Act (ECPA), electronic communications are divided into two groups:
- Stored communication
- Communication in transit
Under the law, electronic communication in transit has almost the same level of protection as voice communication, meaning that intercepting it is prohibited. Accessing stored electronic communication, such as e-mail sitting on a server waiting to be sent, is not illegal. The courts have ruled that since the e-mail is not physically traveling anywhere -- is not "in transit" -- it does not have the same level of protection.
This directly contradicts many laws regarding traditional mailing systems. If the U.S. Postal Service worked this way, no one would be allowed to open your mail as long as it were being carried to your mailbox; but the second it is placed in the mailbox and stops moving, your neighbors would be free to come over, open and read your mail. This, of course, is not how laws regarding the postal system work. It is illegal to tamper with someone else's mail.
The U.S. Constitution contains no express right to privacy, but the U.S. Supreme Court has historically upheld an implied right to privacy. However, this right does not apply to employees. Courts seem to be upholding the idea that since the company owns the equipment and the office space, it has a right to monitor its employees to prevent misuse of that equipment and space.
With more companies installing monitoring devices and technology, you should be careful the next time you send that e-mail to mom or check out the latest sale at your favorite online store while at work. Your employer could be watching, listening and recording.
For more information on workplace surveillance and related topics, check out the links on the next page.