Skip to Navigation
University of Pittsburgh
Print This Page Print this pages

November 7, 1996

Voice-mail, e-mail may not be as private as some employees think

If you send or receive e-mail and voice-mail on equip- ment owned by your employer, never assume that:

* Your employer isn't eavesdropping on those messages.

* The law protects the privacy of those messages.

* Deleting such messages will permanently erase them.

Richard Holmes, Pitt associate general counsel, offered that advice during a lecture last month on "The Legality of Employer Monitoring of Employee Electronic Communications and the Discoverability of Such Information in Litigation." In most situations, Holmes said, federal and state laws do not bar employers from monitoring their employees' electronic communications on employer-owned equipment.

And that's often true whether or not the employer has a policy warning employees that their e-mail and voice-mail messages may not be private, he said.

"Keep in mind," Holmes added, "that the law is largely reactive, and computer technology generally is light years ahead of the law that applies — or at least arguably applies — to that technology. As a result of all that, the cases involving e-mail and voice-mail are few and far between, and the answer is not crystal clear." But based on court rulings in recent years, the following laws apply to employer monitoring of electronic communications in Pennsylvania, Holmes said:

* The Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures. The amendment applies to public, not private, employers. But for Constitutional purposes, Pitt is considered to be a state institution, so the amendment applies here, Holmes said.

* The federal Electronic Communications Privacy Act of 1986, which makes it a federal crime to intentionally or willfully intercept, expose, use and access the wire, oral or electronic communications of another person.

* Pennsylvania's wiretap law, which was amended in 1988 to include electronic communications. The law prohibits the interception of communications without the consent of all parties to the communication — for example, tape recording a telephone conversation without the consent of all participants in the conversation.

* Pennsylvania right to privacy laws.

According to Holmes, courts have ruled that each of those laws includes exceptions giving employers the right to monitor employees' electronic communications as long as: The employer maintains a written or verbal policy on monitoring work-related communications, makes that policy known to employees, and limits its monitoring to the confines of the policy.

Of the four laws, Pennsylvania's wiretap law would seem to be the most restrictive of employer monitoring because it requires the consent of all parties to a communication, Holmes said. But even the wiretap law allows an exception for "providers of electronic communication services to the public" — a category open to broad interpretation, Holmes noted. In such exceptions, only one party would need to consent to monitoring. And that party could be an employee who is aware (or who, according to the courts, should be aware) of his or her employer's monitoring policy, Holmes said.

According to Holmes, employers risk overstepping their legal rights when they monitor employee e-mail and voice-mail that is intimately personal and not criminal in nature — that is, it does not constitute sexual harassment, violate copyright or trade secrets laws, etc. Holmes cited a recent incident in California, which has a right to privacy law similar to Pennsylvania's: An employee of McDonald's received a series of messages from his lover on his office voice-mail machine. The employee's supervisor discovered the messages and played them for the employee's wife. "As it turned out, the employee and his wife reconciled, and they sued McDonald's for invasion of privacy," Holmes said. "The case was recently settled out of court on terms that are not publicly available, so we don't really know what the court would have ruled." With all of the legal uncertainties, a growing number of employers — including universities — are adopting clear policies on monitoring electronic communications, Holmes said. At Pitt, a committee is expected to begin meeting soon to investigate whether the University needs to revise, or add to, its current policies on employee and student use of University-owned e-mail and voice-mail equipment. See story on this page.

Even workers whose employers don't monitor their electronic communications should realize that those communications are not necessarily private. "Under rules of litigation, employers can be required to turn over electronic communications in a lawsuit," Holmes noted.

"It has become more and more common for lawyers, during the discovery process of litigation, to ask for computer communication records. In fact, in recent years both the federal and state rules of civil procedure — which govern, among other things, the discovery process of litigation — have been amended to include computer records and communications." Such data can include employee e-mail and voice-mail, Holmes said.

"Keep in mind that the use of a delete button does not necessarily delete a document for all time. In fact, that message may continue to exist somewhere on the system or in the employer's backup files for weeks, months and conceivably years." See story on this page.

Employee e-mail and voice-mail have provided "smoking gun" evidence in a number of court cases, Holmes said. Such messages may be intended to be joking, informal and private. "But, taken out of context, they can be damaging — or at the very least, very embarrassing." Employee electronic communications also can be subject to open records laws, Holmes said. Even though federal and state laws do not require Pitt to open its records to the public, some of its faculty, staff, students and administrators exchange e-mail and voice-mail with institutions (such as federal research funding agencies) that are subject to open records laws. "Your communication, if relevant, can be disclosed by that government entity pursuant to an open records law request," Holmes warned.

— Bruce Steele

Filed under: Feature,Volume 29 Issue 6

Leave a Reply