The Privacy Lawyer: Monitoring Employees' Internet Communications: Big Brother Or Responsible Business? - InformationWeek

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The Privacy Lawyer: Monitoring Employees' Internet Communications: Big Brother Or Responsible Business?

Balancing employees' privacy rights with the responsibilities of the employer is becoming increasingly tricky for both sides Parry Aftab says.

With the onslaught of electronic communications--E-mail, instant messaging, peer-to-peer, blogs, broad Internet access, chat rooms, intranets, and interactive Web sites--employers and employees are faced with new legal and ethical issues of privacy. Balancing employees' privacy rights with the responsibilities of the employer for certain actions of its employees is bound to be one of the hottest issues of this decade.

It's estimated that approximately half of the people on the Internet access it in connection with their work. This statistic demonstrates the magnitude of this growing nightmare for employers. What are their rights and responsibilities?

Employers face legal issues ranging from defamation, copyright infringement, trade-secret protection and confidentiality, harassment (including hostile work-environment issues), to criminal accountability and loss of attorney-client privilege. How do employers weigh these potential liabilities against their employees' rights and expectations of privacy?

Many U.S. managers, raised in the 1960s, find the process of monitoring communications to be abhorrent on an ethical basis. But the failure to monitor and police the communications consistently is something that can't be ignored without serious consequences.

This article examines the laws that permit employers to monitor employees' electronic communications, especially their E-mail.

E-mail is a very informal medium. It's far closer to speech than a written communication and typically lacks the care given to a written communication. It has evolved into a hybrid of speech and writing by the use of emoticons, those shorthand signs that explain the tone of the E-mail.

Humor is usually connoted by the use of smiley faces, to take any potential sting out of the words when seen in an E-mail vacuum. Other symbols are used frequently by experienced E-mail correspondents and persons frequenting online discussion groups and chat rooms.

In addition, for some reason, people "say" things in E-mail and online that they might not otherwise feel comfortable communicating to others. A combination of informality with the lack of inhibitions often demonstrated in online communications creates a dangerous situation for employees and their employers, to which the statements may be attributed. These statements, casually made, can give rise to defamation actions or harassment charges--which typically lodged against the employer for "allowing" such remarks.

The prime law in this area is the Electronic Communications Privacy Act of 1986, an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, commonly known as the "wiretap law." The ECPA was adopted initially to govern third-party interceptions of electronic communications, not to govern employers' rights to monitor their workers.

The ECPA provides civil and criminal penalties for any person who intentionally intercepts, uses, or discloses "any wire, oral, or electronic communication." The term "electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo optical system that affects interstate or foreign commerce." The ECPA also affords recourse for the use or recitations of information obtained from an intercepted electronic communication.

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