fact many employers now use email systems that copy all email messages that pass
through the system to check for issues related to employee productivity and illegal
conduct.
111 In addition, employers have the right to track the websites visited by
their employees, to block employees from visiting specific internet sites, or to limit
the amount of time an employee may spend on a specific website.
112 Finally, it is
important to recognize that because Title III’s definition of “electronic communications”, does not include communications held in electronic storage, courts have
granted free reign to read the private email of employees stored in systems such as an
electronic bulletin board.
113 As a result, although Title III prohibits the “interception” of electronic communications in real time, it does not prohibit the retrieval of
that communication after it has been put into “electronic storage”.
114
Even if the employer’s monitoring program does not explicitly further a business
purpose, employers may lawfully monitor communications under the “consent
exception” provided that they have an employee consents to monitoring.
115 Because
the consent exception is not limited to business communications, a company may
arguably monitor personal electronic communications if it can show employee
consent. Some courts have held that consent may be implied in cases where
employers have informed their employees: “1) of the manner in which the monitoring will be conducted; and 2) that he or she will be subjected to such monitoring.”
116
Employees who work for public employers such as Federal and State agencies
also enjoy the protection of the Fourth Amendment to the U.S. Constitution. This
Amendment and the case law surrounding it protect public employees from “unreasonable government searches”.
117 Public employers who conduct searches that
exceed the scope of a legitimate business purpose may put themselves at risk of
violating the Constitution and exposing their agency to a suit brought pursuant to
42 U.S.C. §1983. However, the scope of Fourth Amendment protections in the
workplace may be shrinking in the digital world. While the Supreme Court, in
O’Connor v. Ortega (1983),
118 held that a government employee had a legitimate
expectation of privacy in the contents of his desk and file cabinets,
119 the Court
stated that in determining whether an employee’s expectation of privacy is a
111 Id.
112 “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.
113 Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994), aff’g
816 F. Supp. 432 (W.D. Tex. 1993).
114 Caragozian and Warner Jr (2000).
115 18 U.S.C. § 2511(2)(d).
116 Caterine (2009).
117 Gray Plant Mooty & the Minnesota Department of Employment and Economic Development, A
Legal Guide to Privacy and Data Security (2017). P. 68. Available online at: https://mn.gov/deed/
assets/legal-guide-to-privacy-and-data-security_tcm1045-133708.pdf.
118 480 US 709 (1987).
119 480 U. S. 714–719.
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S. M. Boyne
through the system to check for issues related to employee productivity and illegal
conduct.
111 In addition, employers have the right to track the websites visited by
their employees, to block employees from visiting specific internet sites, or to limit
the amount of time an employee may spend on a specific website.
112 Finally, it is
important to recognize that because Title III’s definition of “electronic communications”, does not include communications held in electronic storage, courts have
granted free reign to read the private email of employees stored in systems such as an
electronic bulletin board.
113 As a result, although Title III prohibits the “interception” of electronic communications in real time, it does not prohibit the retrieval of
that communication after it has been put into “electronic storage”.
114
Even if the employer’s monitoring program does not explicitly further a business
purpose, employers may lawfully monitor communications under the “consent
exception” provided that they have an employee consents to monitoring.
115 Because
the consent exception is not limited to business communications, a company may
arguably monitor personal electronic communications if it can show employee
consent. Some courts have held that consent may be implied in cases where
employers have informed their employees: “1) of the manner in which the monitoring will be conducted; and 2) that he or she will be subjected to such monitoring.”
116
Employees who work for public employers such as Federal and State agencies
also enjoy the protection of the Fourth Amendment to the U.S. Constitution. This
Amendment and the case law surrounding it protect public employees from “unreasonable government searches”.
117 Public employers who conduct searches that
exceed the scope of a legitimate business purpose may put themselves at risk of
violating the Constitution and exposing their agency to a suit brought pursuant to
42 U.S.C. §1983. However, the scope of Fourth Amendment protections in the
workplace may be shrinking in the digital world. While the Supreme Court, in
O’Connor v. Ortega (1983),
118 held that a government employee had a legitimate
expectation of privacy in the contents of his desk and file cabinets,
119 the Court
stated that in determining whether an employee’s expectation of privacy is a
111 Id.
112 “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.
113 Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994), aff’g
816 F. Supp. 432 (W.D. Tex. 1993).
114 Caragozian and Warner Jr (2000).
115 18 U.S.C. § 2511(2)(d).
116 Caterine (2009).
117 Gray Plant Mooty & the Minnesota Department of Employment and Economic Development, A
Legal Guide to Privacy and Data Security (2017). P. 68. Available online at: https://mn.gov/deed/
assets/legal-guide-to-privacy-and-data-security_tcm1045-133708.pdf.
118 480 US 709 (1987).
119 480 U. S. 714–719.
424
S. M. Boyne