emails may create menu options that allow the recipient to opt out of some messages,
the choices must also contain the option to stop all commercial communications.
101
Marketers must honor recipients’ opt-out request within 10 business days.
102 The
potential penalties that may be imposed for each separate email sent in violation of
the law include a fine of up to $40,654.
103 In addition, after the consumer has
submitted an opt-out request, neither the sender nor any person who knows of the
opt-out request may “sell, exchange, or otherwise transfer the recipient’s e-mail
address without the recipient’s affirmative consent, except as required by law”.
104
2.5 Processing of Personal Data of Employees
2.5.1 Email & Computer Storage
As a general rule, employees in the United States enjoy few privacy rights in the
workplace. The Electronic Communications Privacy Act of 1986 (ECPA) is the
primary federal law that governs the monitoring of electronic communications in the
workplace.
105 The ECPA amended Title III of the Omnibus Crime Control and Safe
Streets Act Of 1968 which originally addressed the interception of “wire communications”. While the ECPA in general prohibits individuals and companies from
intercepting oral, wire, and electronic communications,
106 there are two exceptions
to this prohibition that apply to the workplace. According to the business purpose
exception, employers may monitor employees’ electronic communications as long
as the monitoring is done in the “ordinary course of business” and the employer uses
certain limited types of equipment to monitor the communications.
107 Federal courts
have held that any emails sent using company equipment are considered to be
company property.
108 With respect to email activity, any emails sent using company
equipment are considered to be company property.
109 Employers who have a valid
business purpose for monitoring employee email may view employee email.
110 In
101 Id.
102 See 47 C.F.R. § 64.3100(b)(1), (6).
103 Compliance Guide for Business, supra note 100.
104 Brennan (2016).
105 “Managing Workplace Monitoring and Surveillance”, Society for Human Resource Management, 18 February 2016. Available online at: https://www.shrm.org/resourcesandtools/tools-andsamples/toolkits/pages/workplaceprivacy.aspx.
106 18 U.S.C.S. § 2510(4).
107 18 U.S.C.S. § 2510(5)(a).
108 See Williams v. Poulos, 11 F.3d 271, 280 (1st Cir. 1993).
109 “Privacy in the Workplace: Overview”, FINDLAW, Available online at: http://employment.
findlaw.com/workplace-privacy/privacy-in-the-workplace-overview.html. Last accessed on
18 July 2017.
110 Id.
Data Protection in the United States: U.S. National Report
423
the choices must also contain the option to stop all commercial communications.
101
Marketers must honor recipients’ opt-out request within 10 business days.
102 The
potential penalties that may be imposed for each separate email sent in violation of
the law include a fine of up to $40,654.
103 In addition, after the consumer has
submitted an opt-out request, neither the sender nor any person who knows of the
opt-out request may “sell, exchange, or otherwise transfer the recipient’s e-mail
address without the recipient’s affirmative consent, except as required by law”.
104
2.5 Processing of Personal Data of Employees
2.5.1 Email & Computer Storage
As a general rule, employees in the United States enjoy few privacy rights in the
workplace. The Electronic Communications Privacy Act of 1986 (ECPA) is the
primary federal law that governs the monitoring of electronic communications in the
workplace.
105 The ECPA amended Title III of the Omnibus Crime Control and Safe
Streets Act Of 1968 which originally addressed the interception of “wire communications”. While the ECPA in general prohibits individuals and companies from
intercepting oral, wire, and electronic communications,
106 there are two exceptions
to this prohibition that apply to the workplace. According to the business purpose
exception, employers may monitor employees’ electronic communications as long
as the monitoring is done in the “ordinary course of business” and the employer uses
certain limited types of equipment to monitor the communications.
107 Federal courts
have held that any emails sent using company equipment are considered to be
company property.
108 With respect to email activity, any emails sent using company
equipment are considered to be company property.
109 Employers who have a valid
business purpose for monitoring employee email may view employee email.
110 In
101 Id.
102 See 47 C.F.R. § 64.3100(b)(1), (6).
103 Compliance Guide for Business, supra note 100.
104 Brennan (2016).
105 “Managing Workplace Monitoring and Surveillance”, Society for Human Resource Management, 18 February 2016. Available online at: https://www.shrm.org/resourcesandtools/tools-andsamples/toolkits/pages/workplaceprivacy.aspx.
106 18 U.S.C.S. § 2510(4).
107 18 U.S.C.S. § 2510(5)(a).
108 See Williams v. Poulos, 11 F.3d 271, 280 (1st Cir. 1993).
109 “Privacy in the Workplace: Overview”, FINDLAW, Available online at: http://employment.
findlaw.com/workplace-privacy/privacy-in-the-workplace-overview.html. Last accessed on
18 July 2017.
110 Id.
Data Protection in the United States: U.S. National Report
423