E-mail, Voicemail, and Employees' Right to Privacy: Monitoring Employees'

• Publication year: 2000
• Pages: 13
• Citation: Vol. 29 No. 10 Pg. 13

29 Colo.Law. 13 Colorado Lawyer 2000.

2000, October, Pg. 13. E-Mail, Voicemail, and Employees' Right To Privacy: Monitoring Employees'

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Vol. 29, No. 10, Pg. 13

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 13]

Hot Topics in Employment Law

E-Mail, Voicemail, and Employees' Right To Privacy Monitoring Employees'
by Andrew M. Low

Employers have plenty of legitimate reasons for wanting to monitor employees’ e-mails and voicemails. Those reasons include preventing employees from wasting time while on the job, protecting trade secrets, and avoiding liability for sexual harassment. But, is it legal for an employer to review surreptitiously employees’ electronic communications? Would such a review of e-mails and voicemails violate employees’ statutory rights or common-law right to privacy

No doubt employees have certain rights to privacy in the workplace.1 However, whether any of those rights preclude an employer from monitoring employees’ electronic communications has not yet been decided. This article looks at the applicable federal statutes and considers whether employees have a right to privacy when they use their employers’ e-mail and voicemail systems

The Federal Statutes

The starting point for analysis of this issue is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"),2 as amended by the Electronic Communications Privacy Act of 1986 (the "ECPA").3 Title III, the original federal anti-wiretapping law, applied only to interception of oral and wire communications carried by a common carrier—in other words, face-to-face conversations and telephone calls over a public utility like AT&T.4 By the mid-1980s, however, Congress noted "dramatic changes in new computer and telecommunications technologies."5 Communications were taking on new forms. Large volumes of data were being transmitted both by wire and wireless communication systems. Use of pagers was increasing, voicemail was common, and e-mail was just making its first appearance.

Against this backdrop, Congress enacted the ECPA to bring the existing wiretapping laws "in line with technological developments and changes in the structure of the telecommunications industry."6 In drafting this new law, it appears that Congress was concerned mainly with interception of electronic communications by strangers. Whatever the reason, the ECPA does not specifically cover monitoring of employee communications by their employers. Whether such conduct is legal is a question of great significance for employers. If monitoring employee communications violated Title III and the ECPA, employers that did so could be subject to criminal prosecution7 and significant civil damages.8

The ECPA provides two different—and inconsistent—standards governing when employers may obtain employees’ electronic communications. One set of standards governs interception of communications, while an entirely different set of standards applies to retrieval of electronic messages from computer storage.

Interception of Electronic Communications

Andrew M. Low, Denver, is a partner in the firm of Davis Graham & Stubbs LLP. Low is a member of the firm’s employment group.

Title I of the ECPA applies to "interception" of electronic communications, which apparently means reading hearing, or copying the communication while it is en route.9 An employer that seeks to monitor electronic communications live—before they are delivered to their destination—runs a...