Is Nothing Sacred?
There is no such thing as privacy. You would know that if you were inclined to take even a casual glance at Sports Illustrated as 2010 ran down. The sports world was consumed with stories about Brett Favre’s alleged texts to Jets sideline reporter, Jenn Sterger and now two massage therapists as asserted in recent court filings. Not to be outdone, Jets head coach, Rex Ryan, found himself on the sidelines while all of New York seemingly became obsessed about his wife’s internet persona.
Now, a Michigan court is preparing to weigh in on the subject of online privacy. According to the ABA Journal, a Michigan man is facing felony charges for reading his wife’s e-mail in an effort to determine whether or not she was having an affair. He was charged under a statute intended to apply to computer hacking, but is read to apply to a circumstance in which someone uses another person’s password, without permission, to, in this case, do a little investigative research.
Given the prevalence of online activities in our society, the issue of online privacy has almost universal ramifications. A week doesn’t go by when we do not hear a question from one of our clients involving employees texting, using Facebook accounts, or simply shooting e-mails around the office. The legal issues can run the gamut from unauthorized use of equipment to sexual harassment and the creation of a hostile work environment.
But what are the employer’s rights?
There are three statutes which have to be considered when an employer contemplates monitoring the employee’s use of e-mail, telephone or the internet: (1) the Electronic Communications Privacy Act of 1986; (2) the Maryland Wiretap Act; and (3) the Maryland Stored Communications Act. Maryland courts have consistently explained that the purposes of Maryland law on the subject is to prevent the unauthorized interceptions of conversations where one party has a reasonable expectation of privacy.
If asked, many employers would maintain that no employee has a reasonable expectation of privacy if company equipment is being used for the communication. But that is not always the case. The question can turn on the type of monitoring at issue and the employer’s goals in taking the offending actions. For example, videotaping employees is different than recording their phone conversations or perusing their e-mail after they have left for the day.
In each case, there may be a legitimate business purpose behind the company’s actions. We’ve all heard the recorded message that “calls may be monitored for quality assurance.” Another reason for monitoring, this time relating to e-mail, is that companies can be sued for copyright infringement or even sexual harassment, depending upon information downloaded by employees onto company systems.
By far, the best policy for any business where monitoring will take place or even where employees have access to e-mail and the internet is to create and distribute a written policy explaining the company’s right to engage in the specific type of monitoring anticipated by the company. The warning alone, if well drafted and universally distributed, will serve to limit or eliminate the employee’s expectation of privacy. And in the end, that’s what it comes down to – fair warning, reasonableness, and the question of what a normally intelligent person’s privacy expectations should have been.
We’ll just have to see how the court defines “reasonable expectation of privacy” where Brett Favre and the Michigan husband are concerned.
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