Wednesday, July 1, 2009

Employees’ web-based email may be off-limits to employers

It is generally understood by employees and employers that employer-provided email systems belong to the the employer, and that employees do not enjoy any rights of ownership or privacy to that which is sent or received through that system. With workplace internet access the norm, many employees also have the ability to check personal web-based email accounts (Gmail, Yahoo, and the like) right from their desks. Many employers mistakenly believe that they have the same rights to monitor and access employees’ non-work, personal email that may happen to transmit through their system.

According to an article posted on last week, employers may be opening themselves up to potential liability by prying into employees’ own email accounts. The article discusses recent court interpretations of the Stored Communications Act, a federal statute that creates liability for whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility.” In layman’s terms, courts are allowing employees to use the SCA to attack employers who probe into personal email information accessed from work.

Something to think about before you ask an IT person to look into an employee’s Gmail to see if he sent that harassing message, or to see if he’s sending confidential information to your chief competitor. You may be breaking one law by trying to comply with another.