Electronic Mail and
Text Message Surveillance in the Workplace: The Cases
Introduction
Should
a employer be allowed to read an employee's email messages from their
personal accounts, social media sites, or work issued cell phone text
messages? This article will discuss several cases where employee's
took their employer's to court regarding an alleged violation of
their privacy due to confiscation of email or text message
correspondence.
Phillip
Hamilton served as a member of the Virginia General Assembly as well
as working part-time for a school district during the years of
1998-2009 (Epic).
Hamilton was convicted for “federal program bribery and extortion
under color of official right (U.S.).”
The charges were based on his making a deal with Old Dominion
University to secure state funding if they gave him a position at the
university (U.S.).
The government was able to prove that this deal did indeed happen by
accessing emails on the computer he used for state business. They
confiscated emails that he sent to his wife, sandwiched in between
emails that he sent the university and when paired together, set up
the context for extortion (Epic).
Based
upon the email dialog with his wife, he attempted to appeal the
conviction in October 2012, claiming that admission of the emails
from his wife violated the marriage communications privilege
(Mitchell).
The courts ruled to uphold the conviction and said that he had waived
his right to this safeguard when he emailed his wife from his work
computer via his work email address. The court also said that the
school's policy is defined as not granting privacy when it comes to
their computers and with every login to the system, he is agreeing to
their terms (Mitchell).
Epic
filed a “friend of the court” brief to help argue for the right
to workplace privacy (Epic). They argued that a workplace policy
cannot be applied retroactively when terms have been changed since
the actual offense has occurred (Epic). Epic also argued that even in
the event that electronic communications occur on a company-owned
device, the laws pertaining to protecting a husband and wives
communication should always be upheld and any communications that
occur between them should be assumed to be private (Epic). The courts
did not overturn this conviction but upheld the original charges
completely.
City of Ontario v. Quon
The
City of Ontario issued pagers with a text messaging plan to
employee's within the Ontario Police Department. Sergeant Quon was
issued a pager as well as his colleague, Sergeant Trujillo. Each time
a message is sent with the pagers, a copy of the message is stored in
the wireless company's database. The staff was informed that the
pagers were intended for work-related purposes only and they should
not exceed a 25,000 character limit (Lynn).
Quon exceeded the limit on several occasions and was confronted
regarding the overage. He claimed that Lieutenant Duke agreed that he
could just pay the difference in the event he went above the limit
and he would not request an audit from the company to determine the
nature of the messages (Lynn).
In
2002, Duke requested the audit from the company, despite his alleged
agreement with Quon, stating he wanted to find out if the were
business related so he could determine whether the plan needed to be
increased (Lynn).
Many from the department sifted through the records and determined
they were primarily personal and of a sexual nature.
Quon
filed suit against the City of Ontario, claiming his fourth amendment
rights were violated. He claims Duke authorized him to use the pager
for personal purposes and agreed to avoid audit as long as he paid
for the difference in overage fees. The courts determined that Quon's
rights were not violated and he should not have reasonably expected
that the messages would never be questioned (CITY).
Further the court concluded Quon's right to privacy was not violated
because the reasoning behind the City of Ontario looking into the
pager usage was legitimate and work-related (CITY).
STENGART v. LOVING CARE AGENCY INC LCA
Maria
Stengart was an the Executive Director of Nursing for Loving Care
Agency Inc.(LCA) and had begun her employment with LCA in 1994. In
January 2008, she left LCA, claiming she was forced to resign
“because of a hostile work environment, retaliation,
and harassment based on gender, religion, and national origin
(STENGART).”
During her employment, Stengart was issued a company laptop and
during the tail end of her employment with LCA, she used the laptop
to access her personal email account and corresponded with her
attorney regarding the situation at work (Gordon).
Following her resignation, she returned the laptop to LCA and filed
suit against them.
In order to prepare for the lawsuit,
LCA sent her laptop to a forensic specialist to create a digital
image of the hard drive. Stengart did not realize that each time she
used her personal email or any email, the browser created a copy of
her internet footprint in a cache folder of temporary internet files
which was then stored on the hard drive (STENGART).
The company had a strict policy concerning the devices they issued to
their employees and clearly stated that anything on the issued
computers belonged to LCA. The court ruled in favor of LCA in
February 2009, stating the policy in place was defined for all
employees and Stengart should have had no expectation of privacy when
using the company-owned laptop (Maria).
The case of Stengart vs. Loving Care
Agency was appealed in December 2009. This time the courts found in
favor of Stengart. In the original case the judge determined the
electronic resources policy in place by LCA, was defined as having
rights to all personal or company email correspondence so long as it
occurred on the device they owned (Maria), however, in the appeal the
opposite was determined. The judge concluded that the policy in place
by LCA did not mention anything about having rights to personal
emails and it also did not explicitly state that the employee would
be subject to retrieval of personal emails on company-owned equipment
(Gordon).
Further, the court emphasized the confidentiality between a client
and their lawyer, denying they had rights to read the emails
(Gordon).
Conclusion
The workplace privacy cases discussed
in this article vary in the details and conclusions the courts came
to, however, they all seem to convey a message to both the employer
and employee regarding policy. As an employee, it is essential you do
at minimum two things to protect yourself:
- know the company's stance regarding privacy in your workplace and be sure to keep abreast of any changes in the policy
- if you are issued any electronic devices through your workplace it is best to use the equipment for work purposes only
As an employer, be certain that your
policy concerning privacy is thorough, easily accessible to
employees, and is actively discussed with staff so everyone is
informed.
It is worth mentioning, that even
though the courts overturned the initial ruling in the Stengart vs.
LCA, the courts were clear that they were not saying that an employee
has the right to use the equipment to communicate with a personal
attorney and could be disciplined if that is in violation of the
company's policy, but they still would not have the right to read the
email (Gordon).
This case also does not change the fact that a company can create a
explicit policy surrounding employee's right to privacy on electronic
devices they issue and as long as the employee is aware and agrees it
is valid.
Works Cited
CITY
OF ONTARIO v. QUON. The Oyez Project at IIT Chicago-Kent College
of Law. 05 May 2013.
<http://www.oyez.org/cases/2000-2009/2009/2009_08_1332>.
"EPIC
- United States v. Hamilton." EPIC - Electronic Privacy
Information Center. Electronic Privacy Information Center, n.d.
Web. 5 May 2013. <http://epic.org/amicus/hamilton/>.
Gordon,
Phillip L., and Christopher M. Leh. "Employers Should Act
Promptly in Response to NJ High Court's Recognition of Employee's
Right to Privacy in Lawyer-Client Emails Stored on Company Computers
: Workplace Privacy Counsel." Workplace Privacy Counsel : San
Francisco Employment Privacy Law Lawyer & Attorney : Littler
Mendelson Law Firm : Employment Related Privacy Issues. Littler
Mendelson PC, 1 Apr. 2010. Web. 5 May 2013.
<http://privacyblog.littler.com/2010/04/articles/internet-communications/employers-should-act-promptly-in-response-to-nj-high-courts-recognition-of-employees-right-to-privacy-in-lawyerclient-emails-stored-on-company-computers/#more>.
Lynn,
Michelle, and Chris Maier. "City of Ontario, CA v. Quon
(08-1332) | LII / Legal Information Institute." LII | LII /
Legal Information Institute. LII, n.d. Web. 5 May 2013.
<http://www.law.cornell.edu/supct/cert/08-1332>.
Maria
Stengart vs. Loving Care Agency Inc. No. BER-L-858-08. Superior Court
of New Jersey. 2009. Web. 5 May 2013.
Mitchell,
Graham. "United States v. Hamilton, No. 11-4847 - South Carolina
Law Review." South Carolina Law Review -. N.p., n.d. Web.
5 May 2013. <http://sclawreview.org/u-s-v-hamilton-no-11-4847/>.
"STENGART
v. LOVING CARE AGENCY INC LCA, , March 30, 2010 - NJ Supreme Court |
FindLaw." Caselaw: Cases and Codes - FindLaw Caselaw.
FindLaw, n.d. Web. 5 May 2013.
<http://caselaw.findlaw.com/nj-supreme-court/1522648.html>.
"U.S.
v. HAMILTON No. 11-4847." Leagle Home. N.p., n.d. Web. 5
May 2013.
<http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020121213111.xml&docbase=CSLWAR3-2007-CURR>.
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