Prohibitions Against Monitoring Employee E-Mail And Other Electronic Communications

I. Introduction

"You have mail!" As electronic mail and voice mail become the standard means of personal and business communication, the danger that such communication will not remain confidential has increased. Unlike telephone conversations and letters, which are temporary transmissions or within the control of the sender and the receiver, e-mail and voice mail are stored transmissions, which can be recalled at a later time and monitored by those who control the storage system. Where a business provides its own e-mail or voice mail facilities, employees' electronic communications may be subject to inspection and monitoring by employers, raising concerns over employees' right to privacy. On the other hand, employers have a legitimate interest in assuring that facilities they have furnished for business purposes are used for those purposes, or at least not for improper purposes. Federal legislation has attempted to define what monitoring of electronic communications is and is not allowed by employers.

II. Federal Legislation

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act restricting the monitoring of wire and verbal communications by both governmental and private persons.¹ The federal wiretapping act prohibits the interception of wire or verbal communications except in limited circumstances, such as where a court order allows the interception or where some party to the communication consents to the interception. The federal law allows an employer to record or monitor the telephone conversations of its employees if it is done on equipment provided by the employer and for a legitimate business reason. However, employers must limit monitoring and taping to business-related telephone conversations of employees and may violate the wiretapping act if personal calls are intercepted, especially where employees have been allowed to use business telephones to make and receive personal calls.

Nevertheless, the federal wiretapping law was enacted before the advent of email and voice mail and is not, by its terms, wholly applicable to electronic communications. Congress addressed this legal gap by passing the Electronic Communications Privacy Act of 1986 (ECPA)², which extended the restriction on interception to electronic communications. The ECPA extended the privacy protections of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to both the transmission and storage of digitized textual information exemplified by electronic mail. The ECPA amended the definition of the term intercept to make it clear that it is illegal to intercept the non-voice portion of a wire communication such as the data or digitized portion of a voice communication. The non-voice portion includes electronic communication, which is defined as any transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system. The ECPA also established access and use restrictions of stored wire and electronic communications. E-mail and voice mail are both stored communications covered by the ECPA because the intended recipient transmits these communications to electronic memory for access at a later time.

Although the ECPA imposes some restrictions on access to electronic communications, it imposes few practical restrictions on employers desiring to monitor employee e-mail or voice mail where the employer provides the system that stores and receives the transmissions. The ECPA only prohibits access to an electronic communication facility if it is done "without authorization" or in a manner that exceeds the authorization given. While there is no specific prohibition in the ECPA for an employer to monitor the e-mail of employees, the ECPA does not specifically exempt employers. But, the prevailing view among lawyers is that an employer that provides internal e-mail and voice mail facilities for employee use can establish the policies for access to those systems and grant supervisors the authorization to inspect and monitor e-mail or voice mail, provided the employee forewarns employees that they should expect no privacy concerning those communications.

The ECPA provides two different standards governing when employers may monitor employees electronic communications. The ECPA permits the interception of email messages by an employers delegate if the interception is made in the normal course of that persons employment while engaged in any activity, which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. A supervisor who intercepts e-mails as part of the employers monitoring employee communications would not necessarily fall within this exception. Therefore, the supervisor could be held to civil and criminal liability for violation of Title III and the ECPA.³ But, courts have interpreted the "interception" of electronic communications narrowly as extending only to acquisition of the content of such communications during transmission. In order to engage in an improper interception, an employer/supervisor would have to acquire the content of the email during the split second it is being transmitted, or listen into the voice mail message as it is being left for the intended recipient. While this conduct is possible, it is unlikely because employers desiring to monitor e-mail or voice mail on systems they provide need only access the memory where it is stored, rather than the actual transmission itself.

On the other hand, the ECPA appears to impose no restriction on the employers retrieval of employees electronic communications when the employer, instead of intercepting the communication while it is en route to its destination, simply retrieves the message from computer storage, at least when the communications system is strictly internal and accessible only to employees.⁴ Employers should not have access to their employees' e-mail or voice mail that is not contained on an employer-provided system. The ECPA prohibits entities that provide electronic communication service to the public from divulging the content of any stored electronic communication except as authorized by the customer. Even if employees access their e-mail and voice mail through computer or telephone systems at work, employers should not seek access to those communications where they are stored in a system that the employer does not provide.

Of course, it is not unlawful for the employer to monitor the employees e-mail or voice mail when the employer has the employees consent. There are two methods for obtaining the employees consent. Express consent can be obtained by having the employ consent in writing to such monitoring. Consent can also be implied by notice to the employee that the employer is monitoring e-mail and voice mail. This notice should appear in the employers policy manual. Notices to this effect should also be placed on the system start-up screens as well.

III. The Law in Colorado

Federal law does little to restrict employer monitoring of employee electronic communications. The law in Colorado is similar. Colorados wiretapping and eavesdropping statutes appear to proscribe the interceptions of communications, rather than the retrieval of communications from computer storage. Moreover, there is an express exception from the wiretapping and eavesdropping statutes for persons using wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice of the use of such devices is given to the public.⁵

Violation of an employees reasonable expectation of privacy may provide the basis for a monitoring employers liability. Consequently, it is imperative that Colorado employers obtain the express or implied consent of employees prior to monitoring employee e-mail or voice mail and, further, that the employer confine such monitoring activities to the retrieval, rather than the interception, of such communications from the employers own computer storage facilities.

IV. Conclusion

As with the technology itself, the law governing electric communications technology and the privacy issues it implicates is emerging and developing. Although federal law imposes few restrictions on employer monitoring of employer provided e-mail and voice mail, recent statutes and laws may address employer policies of monitoring employee communications. Before embarking on a program that involves monitoring employees' electronic communications, employers would be wise to consider both the legal ramifications and the effect such a policy would have on labor relations. Employees also should be aware of their rights and responsibilities with respect to electronic communications in the workplace. The law is too complex for an employer to embark on a monitoring program without the advice of counsel concerning the circumstances under which the employer proposes to proceed.

V. Preeo Silverman Green & Egle, P.C. and Employer Representation

Our firm has extensive experience in the representation of employers. We publish The Employers Advisory, which is a quarterly publication providing in depth discussion of topics important to employers. Our firm is located at 1401 17th Street, Suite 800, Denver, Colorado 80202, (303) 296-4440. The firms attorneys representing clients in these matters may be reached by e-mail as follows:

Eldon E. Silverman, Esq. Email Me
Jersey M. Green, Esq. Email Me

• ¹ 18 U.S.C. 2510-2520.
• ² 18 U.S.C. 1367, 2232, 2510-21, 2701-11, 3117, 3121-27.
• ³ E-Mail, , and Employees Right to Privacy: Monitoring Employees Electronic Communications, Andrew M. Low, 29 The Colorado Lawyer 10 (OctVoicemailober 2000).
• ⁴ Id.
• ⁵ 18-9-305(1), C.R.S.