Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
“You have no right to privacy in your e-mail using corporate resources”
“The Company reserves the right to monitor your Internet access at any time”
So chimes policy after policy after policy. But, is the mantra really true?
Several recent cases suggest that answer is “not always.” In United States v. Long, the highest military court (not exactly a known bastion of privacy protection), recently held that a Marine Corps investigator violated a soldier’s privacy rights by obtaining inculpatory e-mail from the system administrator. The Department of Defense had an e-mail policy that was as draconian as any private employer’s, but the policy said nothing about turning over e-mail to criminal investigators, and the system administrator admitted that he did not read individual e-mails when monitoring the system because he felt they were private. Sound familiar?
At the start of 2007, the Ninth Circuit Court of Appeals in United States v. Ziegler held that an employee caught viewing child porn on his work computer had a reasonable expectation of privacy in the computer because it was stationed in his locked office. The court stated more generally, “in the private employer context, employees retain at least some expectation of privacy in their office,” which, for most employees in today’s working world includes a computer with stored e-mail.
In yet another example, a federal district court in California held that a police officer had a reasonable expectation of privacy in salacious text messages exchanged with his girlfriend using a department-issued pager. In that case, Quon v. Arch Wireless Operating Co., the fact that the department had a written policy singing the same song as most electronic resources policies was irrelevant since the department had communicated an unwritten policy of not auditing the text messages except when an officer disputed charges for overages.
Perhaps judges are starting to worry about the privacy of their own e-mail? Perhaps it is time to revisit and revise your electronic resources policy?