Privacy and Other Legal Concerns

Posted by Sessions & Kimball |

Employee Rights Attorney

Mission Viejo, California

Faster, it seems, than a high-speed modem, the Internet and features such as electronic mail (“e-mail”) have become fixtures in millions of American homes and in many businesses. These innovations offer myriad benefits to business and workers, especially the increased efficiency in communications that is revolutionizing the way we use and share information.

Existing Law

As so frequently occurs with major technological advances, the technology of the Internet has outpaced the legislative response. “Cyber law” represents an entirely new, and wildly fluctuating, area of legal expertise where the rules are either nonexistent or developing so rapidly it is difficult to keep pace.

The most sweeping legislation dealing directly with the Internet is the Communications Decency Act of 1996, a federal law restricting dissemination to minors of “obscene,” “indecent,” or “patently offensive” material. The Supreme Court recently heard arguments in a case challenging the constitutionality of the CDA. A decision is expected later this year.

E-Mail Privacy

One major issue that is still unresolved involves the privacy of communications sent via e-mail. Employees should not assume the e-mail communications they send through the company’s system are private. While the law in this area is inconclusive as yet, it appears employers have broad authority to monitor messages sent over a company’s e-mail system.

Approximately one-fourth of employers responding to a survey conducted by MacWorld magazine acknowledged monitoring employee e-mail, voice mail, or computer files. Lawsuits by employees challenging the practice have focused on privacy rights; such suits have been generally unavailing. It appears unlikely the courts or legislatures will declare or recognize any broad right to privacy in workplace communications.

The “right to privacy” protected by the U.S. Constitution is implicated only when the government intrudes on an individual’s zone of privacy; it does not extend to private employers. Some states, including Washington and California, have privacy provisions in their state constitutions or strong statutory protection of individual privacy rights, which may apply to the private sector.

The federal Electronic Communications Privacy Act, which prohibits “wiretapping” and eavesdropping on electronic communications, exempts employers’ monitoring of their own internal e-mail systems for business purposes. This exemption leaves employees with the scant expectations of privacy in their on-the-job communications.

At least one federal court has held that employers have the right to read employees’ e-mail with or without the employees’ knowledge. A prudent employer, however, will effectuate a policy as to the extent of privacy employees can expect when communicating via e-mail. Employees should be able to rely on such policies in determining how far removed from normal business communications their e-mail messages can be.

While an employer may frown on personal communications, gossip, or job complaints being disseminated via e-mail, certain employee activities are protected. For example, federal law protects employees from punishment for union organizing activities. An employer may be liable for unfair labor practices if it punishes employees for using e-mail to discuss legitimate labor relations issues.

In addition to its susceptibility to employer monitoring, email is notoriously easy to intercept, even after it has been deleted by the user who sends or receives it. Passwords can be discovered or altered by a network administrator or curious “hacker.” Companies or service providers can archive e-mail messages for months or years, making them traceable long after the user believes they are gone forever. Archived e-mail can be subpoenaed in a lawsuit and may come back to haunt the sender or receiver in a legal forum. Personal or humorous messages, when printed out and distributed, may appear more official than the sender ever intended.

The safest approach is to avoid using e-mail — whether provided by the employer or purchased individually — for any communication that is potentially embarrassing or incriminating. Don’t treat e-mail like a telephone call or spoken message that vanishes as soon as it is heard. E-mail maybe forever.

Other Internet Issues

Both employers and employees should be aware of the additional legal implications of Internet use or abuse.

Libel. The Internet, like any other medium, can serve as a vehicle for defamatory statements. Employers and employees alike may face liability for defamation — false statements tending to injure a person’s character or reputation — communicated over the Internet.

Trade Secrets. Every company has some confidential information that should be closely guarded. Trade secrets, financial forecasts, and information subject to securities laws need special protection from accidental or intentional dissemination over the Internet.

Copyright infringement. The Internet contains an overwhelming number of writings and images that can be downloaded by individual users. Regardless of their easy accessibility, many of these materials are protected by copyright or trademark and have simply been “bootlegged” onto the Internet by another user. Anyone downloading protected material may face liability for infringement. One should not assume that because a document is available for download on the Internet, it can be freely used and reproduced. Quite often the opposite is true.

Contract obligations. Because of new electronic capabilities, laws governing contracts may be amended in the near future. For example, the Illinois Attorney General is drafting legislation known as the Digital Signature Act, which will give certain electronic documents the legal status of a hard copy contract. The “fun and games” atmosphere sometimes associated with the Internet may tempt business people to transmit or respond to documents without the serious consideration that should accompany potentially legally binding instruments.

Sexual harassment. The availability of a wide variety of words and pictures through the Internet, and the First Amendment protection afforded to most such material, make it imperative that employers set their own guidelines for what is acceptable in the workplace. Some large U.S. companies already have faced sexual harassment lawsuits as a result of employees’ transmission of graphic e-mail messages or pictures over the Internet. Employers can purchase software to block employees’ access to objectionable material on the Internet; company policy also should make clear which Internet sites are “off-limits” and the types of e-mail communication the employer considers unacceptable.

Discrimination. To protect themselves from discrimination claims, companies may prohibit the communication of racial or sexual slurs or epithets over internal e-mail systems. (Again, the First Amendment right to free speech applies to government restraints on expression, not private restrictions.)

CDA compliance. The CDA prohibits certain “indecent” or “offensive” material from being communicated to minors. Violation of the statute carries criminal penalties. Internet users should be wary of “chat rooms” where the identity of users is kept anonymous so that communications with minors do not inadvertently occur. Employers should discourage on-the-job participation in chat rooms, both for this reason and because of the time-consuming nature of chat room communication.

Time management. Access to the Internet brings with it the temptation to spend long periods of time “browsing” or “surfing” the ever-increasing amount of information available. Downloading and printing documents additionally use a company’s computer time and printing supplies. Employers can now purchase software that monitors and reports employees’ online activities so that long periods of “surfing” can be detected and addressed appropriately.

Striking a Balance

The Internet is a valuable tool with unlimited potential for changing global communications. Businesses now face the challenge of learning to make full yet efficient use of this new resource while avoiding possible abuses and legal entanglements. At the same time, courts and legislatures need to carefully craft applicable law to address the issues raised by the use of the Internet, without trammeling individual rights.