Reading your every keystroke: protecting employee e-mail privacy.

• Author: Wesche, Todd M.
• Position: Report

Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. (1)

INTRODUCTION

Employees in the private workforce currently enjoy no privacy in their electronic mail communications. Legal doctrines, which seem to recognize the right of privacy for employees, have been advocated since 1890 when Warren and Brandeis wrote their seminal article The Right to Privacy. (2) Even though there has been a general trend to recognize privacy in various aspects of American life, the courts have been wary to extend that right very far into the workplace. To date, no court has considered the tort of intrusion into seclusion to encompass the right to private e-mail communications in the private workplace.

Employers have begun monitoring their employees e-mail communications in an effort to stem liability for abuses of e-mail. Employers have found that the increasing use of e-mail has increased vulnerability to corporate espionage and liability for fostering a hostile work environment. Employers believe that monitoring is necessary to discourage such activity and to limit their liabilities. Monitoring is detrimental to employee privacy and creates unnecessary stress that has a direct negative impact on employees' emotional and physical health.

Employee privacy is not sufficiently protected by the law. From the free press of the 1800s to the Internet of today, technological advances have increased invasion of personal privacy. Current legislative efforts fall short of adequately protecting employee privacy. The common law fails to recognize such invasions as actionable. New legislation is needed to address employee privacy and the common law should recognize a new tort cause of action for invasion of employee privacy. If the law cannot or will not change to meet these needs, employees need to protect their privacy using encryption technology.

What is Privacy?

In order to understand what the right to privacy is, one must understand the concept of privacy. Authors cannot seem to agree on any one definition. Warren and Brandeis echo Judge Cooley's definition of "the right to be let alone." (3) Lawrence Lessig supports the notion that privacy is the power of control over personal information and what can become known by others about you. (4) Privacy can also be defined by what it does: it protects our personhood, which we believe must remain sacrosanct. (5) The basic concept of privacy, distilled from these various authors, seems to be the right of the person from whom information is desired to exclude unwanted acquisition of personal information by others. (6)

The constitutionally protected right of privacy was derived from the penumbra of other protections found in the Bill of Rights. (7) Such rights, however, generally cannot be enforced against non-governmental entities. While employees still maintain their Fourth Amendment rights against unreasonable searches and seizures by state actors, these protections do not exist where the alleged infringer is a private actor. (8) To find a remedy for private invasions of privacy, one must turn to common law tort.

HISTORY

A History of the Right of Privacy

The right of privacy in the common law, specifically in tort, had not been eloquently stated until 1890, when Warren and Brandeis assembled a patchwork of cases that seemed to support a notion of a privacy right in the common law. (9) From these cases, Warren and Brandeis developed the first serious discussion of the right of privacy in American jurisprudence. To understand what the right "to be let alone" (10) meant to Warren and Brandeis, one must look at the world in which they lived.

It was the mid-to-late 1800s. The Civil War had ended a few years earlier, and America was in the process transforming and advancing technologically, especially in the press. In the 1870s, faster presses and linotypes became available that provided higher quality text and photographs and printed at speeds as high as 24,000 twenty-four-page newspapers per hour. (11) Over the next twenty years, that speed would nearly triple to 60,000 newspapers per hour. (12) Newspapers also used monster typefaces (13) and color to attract attention, and journalists used typewriters and fountain pens (14) to make news reporting and article writing faster. The concept of the pre-Civil War era penny press was revitalized nationwide due to these advances, and the sensational reporting (15) that came with them ignited the massive popularity of the newspaper. (16) The press was reporting "the curious, dramatic and unusual, providing readers 'a palliative of sin, sex, and violence.'" (17) The attraction of such sensational reporting was noteworthy and caused remarkable growth in the newspaper industry. Even the Boston Globe "focused on sensationalism, big headlines, and features ... ." (18) In the twenty years before Warren and Brandeis published their article, the number of newspapers in the United States increased from roughly 3500 to over 12,000. (19)

Arthur M. Schlesinger, Sr. asserts, "Undoubtedly, [sensational journalism was robbing] American life of much of its privacy to the gain chiefly of morbid curiosity." (20) The press had, without question, exceeded the bounds of then considered standards of decorum, (21) where proper Bostonians regarded the appearance of their names in newsprint as a disgrace. (22) Yet, journalists of that time engaged in "keyhole journalism" (23) and believed that "everything and everyone was everyone's business." (24) Warren and Brandeis themselves believed that the media's use of technological advances invaded privacy to no small degree: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" (25) History provides little doubt that this significant loss of privacy that accompanied the transformation in the press, both in technological advances and abusive journalistic style, was the catalyst that drove Warren and Brandeis toward writing The Right to Privacy. (26)

Technology and Privacy

Since the days of Warren and Brandeis, technology has continued to advance and to be used to invade privacy. The Internet, (27) one of the wonders of modern technology, (28) has arguably become a utility--a necessity of daily life in America and much of the industrialized world. The terms-of-art of the Internet can commonly be heard from random people on the street. (29) Students can now research an almost infinite number of topics. (30) Family members can communicate in real-time, both with their voice and through typewritten chats, from anywhere on the globe. (31) Corporations advertise their products and services on the worldwide web and enable consumers to purchase a wide variety of goods and services without ever leaving their homes. The Internet has become one of the chief communications tools for employers as well. It allows virtually instantaneous transmission of documents, electronic mail, and other data to consumers, creditors, business partners, and subsidiaries worldwide.

From its inception, the Internet was described as a way of providing social interaction. (32) While the Internet was originally designed to allow remote users to access powerful centrally located supercomputers, (33) human interactivity soon dominated. Three years after the Internet's creation, the first "hot" network application was introduced: electronic mail. (34) E-mail quickly became the most used network application and an omen for the expansive use of networking for "people-to-people" traffic. (35) From the first message, e-mail became, and continues to be, one of the most popular services available on the Internet. Email is a dominant form of communication in the workplace, with an estimated 2.8 billion messages sent in the year 2000 alone. (36)

TECHNOLOGY AND MONITORING

Negative Consequences of E-mail Use

E-mail has exposed employers to a multitude of unexpected problems ranging from sexual harassment liability (37) to economic espionage. (38) As e-mail is an efficient medium for distributing data, "it is a common practice to forward off-color jokes or other objectionable materials to multiple recipients." (39) As such, "[e]-mail is a perfect vehicle for harassment." (40) Employers are concerned with being subject to civil or criminal liability for creating, or allowing to be created, a hostile work environment when its employees send offensive e-mail messages. (41) Employers may also be liable under the Civil Rights Act of 1964 and comparable state anti-discrimination laws. (42) For example, in 1995--early in the development of sexual harassment law--Chevron Corp. agreed to pay $2.2 million to settle sexual harassment charges lodged against it based on, among other things, an e-mail that had circulated about "25 Reasons Why Beer is Better than Women." (43) There have been several notable instances where employer monitoring of e-mail has resulted in the firing or disciplining of the monitored employees. (44) First Union fired seven employees for sending pornographic or otherwise inappropriate e-mail, which included sexually explicit videos. (45) Brokerage-house Edward D. Jones & Co. disciplined 41 people and fired 19 others after one employee filed a complaint based on an email that had circulated through the company headquarters. (46) Solomon Smith Barney fired two high-level analysts after they allegedly transmitted offensive material in violation of the firm's policy. (47) Employers clearly are taking e-mail abuses seriously and are using automated means to discover and prevent these problems.

Monitoring Types

In an effort to counter these kinds of problems, employers are engaged in a "corporate crackdown" on improper use of the Internet and e-mail by...