A Framework for Employee E-mail Privacy Within the United States

Figures & data

TABLE 1 Employee Privacy Protection Within the United States for E-mail Communications

Legal protection	Interpretation for e-mail
I. Constitutional protection
1. U.S. Constitution Fourth Amendment	Generally, only public sector employees of federal, state, and local government have limited privacy protection. To date, there is no precedent for e-mail.
2. State constitutions	Privacy protections, if any, vary substantially from state to state. California has the most developed state constitutional privacy protection. The effect on e-mail still remains unclear.
II. State common law protection	Continuously developing through state court decisions; e-mail privacy protection, if any, is contained in the tort of invasion of privacy and causes of action related to this tort.
III. Statutory protection	There has not been much state or federal legislation with respect to e-mail privacy
1. Federal statutes
Electronic Communications Privacy Act (ECPA) of 1986	Exceptions stated in this Congressional Act appear to leave employee e-mail privacy unprotected
Proposed Privacy for Consumers and Workers Act	Since 1991, this Act has been debated in both houses (the U.S. Senate and the House of Representatives) of the U.S. Congress
2. State statutes	Privacy protections, if any, vary from state to state. Regulation is primarily at the federal level through the ECPA. States may, in some instances, enact statutes more stringent than the federal statute.

FIGURE 1 A framework for employee e-mail privacy within the United States.

TABLE 2 Example Classic Cases of Employee E-mail Privacy Classified According to the Framework in Figure 1

Example case	Action	Consequence
Cell 1
Smyth v. The Pillsbury Co.	Under assurances of e-mail privacy, employee responds to e-mail from home.	Employee fired for e-mail content.
Cell 2
Bourke v. Nissan Motor Corporation in USA	Password-protected e-mail is read by supervisor.	Two employees fired for e-mail content.
Cell 3
Shoars v. Epson America Inc.	E-mail is routinely printed and read.	Employee fired for protesting e-mail monitoring.
Cells 4, 5, and 6
Analogous case of Stratton Oakmont, Inc. v. Prodigy Services Co.	Electronic bulletin board sued by defamed party claiming the service provider is responsible for the actions of a subscriber.	Arguable that by retaining the right to monitor e-mail, the employer might, by analogy, be legally liable for the content of employee e-mail.
Cell 7
Senate Whitewater hearings	Secretaries exchange comments via e-mail.	Public discussion of e-mail content not intended to be shared.
Iran-Contra investigations	Oliver North and John Poindexter delete e-mail, unaware of automatic back-up and capability of retrieval from White House back-up tapes	Public discussion of e-mail content not intended to be shared.
Electronic Evidence Discovery Inc.	Deleted and overwritten e-mail expertly recovered, used as evidence in sexual harassment case.	A female employee receives a settlement of $250,000.
Chevron Corporation	Deleted e-mail retrieved from archives, used as evidence in a sexual harassment case.	Four female employees receive a settlement of $2.2 million
Owens v. Morgan Stanley & Co., Inc.	Two African American employees alleged offensive racist jokes were disseminated through e-mail.	Employees sought $5 million in compensatory damages and $25 million in punitive damages; case later settled.
Siemens Solar Industries v. Atlantic Richfield Co.	Deleted e-mail retrieved from archives, used as evidence in a federal securities fraud case.	Siemens' claims were dismissed as untimely.
Vermont Microsystems Inc. v. Autodesk Inc.	Suspicious e-mail content, coupled with permanent file deletions, used as evidence in a trade secrets allegation.	Vermont Microsystems awarded $25.5 million in damages.
Proctor & Gamble Co. v. Haugen	Destruction of e-mails relevant to lawsuit.	Proctor & Gamble ordered to pay $10,000 to Amway for spoliation of evidence.
Andersen Consulting	E-mail left on client's hard drives documents consultants' work performance.	Client, UOP, files a $100 million suit alleging breach of contract and fraud for work performance.