Original URL: http://www.theregister.co.uk/2006/08/02/workplace_email_privacy/

Email privacy in the workplace

Situation murky

By Mark Rasch

Posted in Media, 2nd August 2006 09:01 GMT

Comment Even with a well-heeled corporate privacy policy stating that all employee communications may be monitored in the workplace, the legality of email monitoring is not as clear cut as one might think.

Let's suppose you are an employer. You have a well-written and well distributed policy on privacy in the workplace. You expressly state that employees have NO expectation of privacy in ANYTHING they do. You own the hardware, you own the software, you own the network. You reserve the right to monitor every keystroke, every website, every email, every IM session, every chat discussion, and even monitor the lyrics to any song they happen to be listening to on their iPods (sounds like a fun place to work, doesn't it?). You have your employees acknowledge that you have the right to do such monitoring, and they even swear that they consent to such monitoring.

Your lawyers examine the case law and find that, in every single case where an employer has attempted to monitor the electronic communications of employees (where there was a stated policy that this would occur) the courts have held that the employee has no reasonable expectation of privacy in the contents of their corporate email. As former CIA director George Tenet would say, that's a "slam dunk." Right? Well, my magic 8-ball tells me, "situation murky, try again later."

Different states, different laws

The legal issues around email monitoring all began with the telecommunications giant WorldCom – remember them? Kelly Kearney and Mark Levy lived in California and worked for a company that was acquired by WorldCom. Their valuable WorldCom stock options were handled by the Atlanta branch of Salomon Smith Barney (SSB). When their options went underwater, they sued SSB, and learned that their phone calls from California to Atlanta had been routinely tape recorded in Atlanta.

That's where the trouble started. You see, Kearney and Levy didn't know they were being recorded. Under California law, you can't record someone's conversation without telling them. Of course, no such law exists in Georgia where the recordings were actually made. You see, Georgia law only requires that one of the parties to the conversation consent to the recording to make it legal.

Thus, you can record your own conversations, or, if your boss has obtained your consent (they say it's "my way or the highway"), your boss may record your conversation with others.

California, on the other hand, requires that everyone on the call consent to the monitoring. When Kearney and Levy learned they were recorded in Atlanta, they went to court in California and sued under California law. On July 17, the California court ruled that California's interest in promoting privacy outweighed Georgia's interest in not having its residents spend time in California jails.

The case, Kearny v Salomon Smith Barney, really focused on the concept of "conflict of laws" – or what to do when one state permits conduct that another state prohibits. Essentially, you balance the competing interests, and in this case, California's court said California's interests prevailed. Recognising that it was a close case, the court did not apply its finding retroactively, and did not fine SSB for its actions.

Who can consent to monitoring?

A number of US states require that, before you can record the contents of an "oral" or telephonic communication (or before you can "intercept" such a communication) you must have the consent of all parties to the conversation.

Such is the law in Massachusetts (Mass. Ann. Laws ch. 272), Michigan (§99 Michigan, Mich. Comp. Laws §750.539c), Nevada (Nev. Rev. Stat. Ann. §200.620 - by court decision, and N. H. Rev. Stat. Ann. §570-A:2) South Carolina (S.C. Code Ann. §16-17-470), and Washington State (Wash. Rev. Code § 9.73.030).

Some states expressly extend this "all party consent" philosophy to "electronic" communications. This includes California (Conn. Gen. Stat. §52-570d:), Delaware (Del. Code Ann. tit. 11, §2402(c)(4)), Florida, (Fla. Stat. ch. 934.03), Hawaii, (Haw. Rev. Stat. §803-42), Illinois (720 ILCS 5/), Louisiana (La. Rev. Stat. §15:1303), Maryland (Md. Code Ann., Courts and Judicial Proceedings §10-402), Montana ( Mont. Code Ann. §45-8-213) and Pennsylvania (18 Pa. Cons. Stat. §5703).

It has frequently been in dispute, however, about whose law applies when the party doing the intercepting and the party being intercepted are in different states.

As the Kearney court noted, in 1988 a Florida court found that the recording of a call between Georgia and Florida implicated the Florida all party consent law. In Massachusetts, courts found controlling where the recording took place – if in the Bay State, for example, Massachusetts law applied, if not, the other law controlled.

In New York at least one court held that a person who lived in New York (which is a one party consent state) who was recorded in another state that required all parties to consent could not sue for a violation of the other state's law.

In another New York case, a California resident surreptitiously recorded conversations with a New York plastic surgeon with whom she was collaborating on a book. Even though this clearly violated California law, the New York court provided no remedy in April of 2006, because the plastic surgeon had no expectation of privacy in the call – as a New York resident.

In 1982, when a Texas resident recorded telephone conversations with other company employees in California, Texas' one party consent controlled over California's all party consent.

It was into this fray that the California Supreme Court jumped, and essentially said that privacy interests trump other interests. What does this mean for the employer in single party consent states?

E-mail monitoring

In many states, the same law that prohibits the interception or recording of telephone calls also prohibits the interception or recording of electronic communications without the consent of all parties. So if I send an email from California to you in Georgia, and your boss reads it in accordance with your company's policy (but without my consent) is it legal? It must be legal because we all do it, right? How could it be illegal? How could you expect any privacy in an email to a Georgia company?

Checking my magic 8-ball again, I get the same answer. Situation murky – ask again later. You see, interception of electronic communications is much more complicated than the listening in or recording of telephone calls.

The laws typically differentiate between intercepting a communication (and recording it) and accessing it when it is stored. To intercept or record a conversation requires all party consent in those all party consent states. To access it after it has been stored typically does not (although there are still legal protections for stored communications).

The problem here is both technical and legal. When exactly is an email "intercepted?" A few years back, in United States v Councilman, a federal appeals court in Boston wrestled with whether an operator of an online bookstore and email server violated the law by reading his customers' emails without their consent (only the ones to Amazon, of course).

At issue was whether the e-mails were intercepted "in transmission" or not. The majority of the court said that interception, "includes transient electronic storage that is intrinsic to the communication process for such communications." But they didn't decide what happens, "after a message has crossed the finish line of transmission[.]" The dissent said that, "the Wiretap Act's prohibition on intercepting electronic communications does not apply when they are contained in electronic storage, whether such storage occurs pre- or post-delivery, and even if the storage lasts only a few miliseconds."

In fact, emails are actually never intercepted. All email is "store and forward". While the packets "travel" across the internet, it's not like a physical pod is traveling down a tube. The "original" packet stays on the server, allowing its doppelganger to travel to the next point of departure. Indeed, it would be impossible to "read" an email "in transmission" – you have to stop it, and then reassemble it to get it to appear on the screen.

Thus, the principal legal loophole we rely on in allowing us to read emails with only one party consent is this legal fiction that the email is already "received" and stored - whether or not the recipient has ever seen it.

In one case, a California resident named Weibin Jiang was arrested for a sexual offense and used his employer's computer to communicate with counsel, retaining these files in a subdirectory called "Attorney."

Despite the fact that the computer belonged to the company, and that Mr Jiang signed an agreement expressly indicating that he had, "no expectation of privacy in any property situated on the company's premises and/or owned by the company", the court found that the government could not simply subpoena the attorney client privileged records from the employer. So even consent may not be fully effective. It all comes down to reasonableness.

Privacy in the workplace

What about an employer's right to read emails as they come in? As they hit the inbound server? Again, my magic 8-ball tells me that the situation is murky. If the email is not subject to the consent of all parties, and one of the parties (either the sender or recipient) lives in a jurisdiction that mandates all party consent, then this could be an unlawful interception under state law (Federal law requires only one party consent). Under the new California case, it may not matter that you are in a state that permits one party consent.

The truth is, we monitor these kinds of communications all the time, and everybody kind of expects this kind of monitoring. We are now at the point where most people would agree with the statement that, "I have no expectation of privacy in the email I use at work." This statement probably applies equally to the contents of work related email as well as to any personal (web-based) mail you send using your employer's computers or networks. NO PRIVACY.

Not so fast. You see, despite this fact, if you probe further you will find that people DO have expectations of privacy in both corporate and personal emails used at work – and, lo and behold, these expectations are reasonable. Is it okay for you to read your cubicle mate's email on the screen just because you are curious? Is is okay to forward that email? Can you (or more accurately, may you) read your bosses' email? If the opposite of "private" is indeed "public", does this mean all email is "public?"

Of course not. We expect that email may be read by anyone we send it to, and anyone they may forward it to. We expect that those higher than us on the corporate pecking order (including the system administrator who is God, and his or her denizens) may also read it for legitimate business purposes, and not for idle curiosity. Access may be granted for corporate compliance purposes, regulatory purposes, law enforcement purposes, or other legitimate purposes. But that does not mean there is NO privacy – just very limited privacy.

So, can an employer in an all party consent state read inbound or outbound electronic communications without the consent of all parties? We do it all the time, so it must be okay... but then again, where is that magic 8-ball?

This article originally appeared in Security Focus.

Copyright © 2006, SecurityFocus

SecurityFocus columnist Mark D Rasch, JD, is a former head of the Justice Department's computer crime unit, and now serves as senior vice president and chief security counsel at Solutionary Inc.