[Infowarrior] - Some Courts Raise Bar on Reading Employee Email

[Richard Forno]

Some Courts Raise Bar on Reading Employee Email

By DIONNE SEARCEY

http://online.wsj.com/article/SB125859862658454923.html?mod=rss_Today%27s_Most_Popular

Big Brother is watching. That is the message corporations routinely  
send their employees about using email.
But recent cases have shown that employees sometimes have more privacy  
rights than they might expect when it comes to the corporate email  
server. Legal experts say that courts in some instances are showing  
more consideration for employees who feel their employer has violated  
their privacy electronically.

Driving the change in how these cases are treated is a growing  
national concern about privacy issues in the age of the Internet,  
where acquiring someone else's personal and financial information is  
easier than ever.

"Courts are more inclined to rule based on arguments presented to them  
that privacy issues need to be carefully considered," said Katharine  
Parker, a lawyer at Proskauer Rose who specializes in employment issues.

In past years, courts showed sympathy for corporations that monitored  
personal email accounts accessed over corporate computer networks.  
Generally, judges treated corporate computers, and anything on them,  
as company property.

Now, courts are increasingly taking into account whether employers  
have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when  
an appeals court ruled that an employee of a home health-care company  
had a reasonable expectation that email sent on a personal account  
wouldn't be read.

And last year, a federal appeals court in San Francisco came down on  
the side of employee privacy, ruling employers that contract with an  
outside business to transmit text messages can't read them unless the  
worker agrees. The ruling came in a lawsuit filed by Ontario, Calif.,  
police officers who sued after a wireless provider gave their  
department transcripts of an officer's text messages in 2002. The case  
is on appeal to the U.S. Supreme Court.

Lawyers for corporations argue that employers are entitled to take  
ownership of the keystrokes that occur on work property. In addition,  
employers fear productivity drops when workers spend too much time  
crafting personal email messages.

"Employers are right to expect their employees when they are paid for  
their time at work are actually working," said Jane McFetridge, a  
lawyer who handles employment issues for the Chicago office of Jackson  
Lewis.

Many workers log in to personal email accounts from the office. In a  
2009 study by the Ponemon Institute, a Traverse City, Mich.-based data- 
security research firm, 52% of employees surveyed said they access  
their personal email accounts from their work computer. Of those  
individuals, 60% said they send work documents or spreadsheets to  
their personal email addresses.

Data security experts say such actions could invite viruses or  
security leaks.

More corporations are monitoring employees' email traffic. In a June  
survey of 220 large U.S. firms commissioned by Proofpoint Inc., a  
provider of email security and data loss prevention services, 38% of  
companies said they employ staff to read or otherwise analyze the  
content of outgoing email, up from 29% last year. More companies also  
say they are worried about information leaks: Thirty-four percent of  
respondents said their businesses had been affected by the exposure of  
sensitive or embarrassing information, up from 23% in 2008.

The growing concerns about security and privacy comes as expanding  
technology muddies the waters between personal and professional.

"Computers are becoming recognized as being so much a part of the  
ongoing personal as well as professional life of employees and  
everyone else that courts are more sympathetic all the time to  
granting greater recognition to privacy," said Floyd Abrams, a First  
Amendment attorney at Cahill Gordon & Reindel LLP. Employees often  
assume their communications on personal email accounts should stay  
private even if they are using work-issued computers or smart phones.  
But in most instances when using a work device, emails of all kinds  
are captured on a server and can be retrieved by an employer.

Still, in some cases courts are finding that unless they have  
explicitly told the employee they will monitor email, they don't have  
the legal right to do it -- even if the email in question was a  
personal one sent using a work account, rather than a personal address.

In a case earlier this year in New Jersey, a worker on the brink of  
resigning from her job at the Loving Care Agency Inc. used a personal,  
password-protected Yahoo account on a work laptop to email her lawyer  
to hash out the details of a workplace discrimination suit she was  
planning to file against the agency. After the employee, Marina  
Stengart, left her job and filed suit, her employer extracted the  
emails from the hard drive of her computer laptop.

A lower court found that the emails from Ms. Stengart were company  
property, because the company's internal policies had put her on  
sufficient notice that her emails would be viewed.

But a New Jersey appellate court disagreed, ruling in her favor in  
June, ordering the company to turn over the emails to Ms. Stengart and  
delete them from their hard drives. The court's ruling went so far as  
to dissect the company's internal policies about employee  
communications and decided they offered "little to suggest that an  
employee would not retain an expectation of privacy in such [personal]  
emails."

"We reject the employer's claimed right to rummage through and retain  
the employee's emails to her attorney," the appellate court ruling said.

Loving Care, which declined to comment, has appealed the ruling. The  
case is pending in the New Jersey Supreme Court.

In another case this year, Bonnie Van Alstyne, a former vice president  
of sales and marketing at Electronic Scriptorium Ltd., a data- 
management company, was in the thick of a testy legal battle in  
Virginia state court with the company over employment issues when it  
came to light that her former boss had been accessing and reading her  
personal AOL email account. The monitoring went on for more than a  
year, continuing after Ms. Van Alstyne left the company. Ms. Van  
Alstyne sometimes used her personal email account for business  
purposes, and her supervisor said he was concerned that she was  
sharing trade secrets.

The supervisor, Edward Leonard, had accessed her account "from home  
and Internet cafes, and from locales as diverse as London, Paris, and  
Hong Kong," according to legal filings in the case.

Ms. Van Alstyne sued Mr. Leonard and the company for accessing her  
email without authorization. A jury sided with her, and the case  
eventually settled.

Nicholas Hantzes, a lawyer for the company and Mr. Leonard, said  
employers could learn from the case that to avoid legal tangles they  
"should do everything they can to discourage employees from using  
personal email for business purposes."

—Sarah Needleman contributed to this article.
Write to Dionne Searcey at dionne.searcey at wsj.com

Printed in The Wall Street Journal, page A17