Closing the E-mail privacy gap. (employer monitoring of employee e-mail)

As Ofeldt & Kallman note in the June 1993 issue of the Journal of Systems Management, electronic monitoring has become a matter of growing controversy between employers and employees. Many companies use electronic monitoring to try to boost productivity, but workers often resent these efforts feeling they are an invasion of privacy. One monitoring issue that has led to considerable conflict and even lawsuits against employers involves how private employees' electronic communications should be. Evidence suggests that there is a significant gap between employees'perceptions of e-mail privacy and the rights of employers under the law to monitor and read workers' electronic messages. To promote a positive, productive work environment and to avoid potential legal liability, companies need to develop and communicate an e-mail privacy policy to employees.

A recent Time article comments:

 
 
"It's a situation that arises a million times 
a day in offices around the world.  An 
employee has something personal to tell a 
co-worker-- a confidence, a joke, a bit of 
gossip that might give offense if it were 
overheard. Rather than pick up the phone 
or wander down the hall, he or she simply 
types a message on a desktop computer 
terminal and sends it as electronic mail. 
The assumption is that anything sent by 
E-mail is private-- if not more so-- than 
a call or a face-to-face meeting. That assumption, 
unfortunately, is wrong." 

Organizations have moved quickly to adopt electronic mail and take advantage of its many benefits. E-mail can be used to enhance a company's effectiveness by facilitating the flow of communication between employees at all levels. It also promotes the efficiency of communications, reduces "telephone tag," and it may lead to cost savings from reduced paper and postage usage. Not surprisingly, a study in the May 25, 1992 issue of Networld found that the penetration rate of e-mail in Fortune 500 companies rose from 67% in 1990 to 98% just a year later. According to the Electronic Mail Association's Research and Statistics Committee, the number of e-mail users in Fortune 2000 firms is projected to grow from 8.9 million in 1992 to 15.6 million in 1993. E-mail is becoming as commonplace as the telephone in many organizations. Yet, in the "rush" to expand e-mail, many companies have not given sufficient attention to developing and communicating e-mail usage policies.

As a result, one issue that has emerged in importance, and which has even led to lawsuits against employers, is electronic mail privacy. Marc Rotenberg, Director of Computer Professionals for Social Responsibility, stated in the Wall Street Journal: "This is a big issue, and it's going to become bigger as organizations become increasingly dependent on electronic communications." Similarly, Time points out, "the question of how private E-mail should be has emerged as one of the stickiest legal issues of the electronic age." The purpose of this article is to clarify the issue of e-mail privacy and to offer recommendations to employers in dealing with this challenge.

Company Approaches to E-Mail Privacy

Currently, the only federal statute that addresses the issue of e-mail privacy is the Electronic Communications Privacy Act (ECPA) of 1986. This act prohibits the interception of e-mail messages by parties outside of a company except where there exists proper legal authorization (such as in the case of a search warrant obtained by law enforcement officials). Importantly, the ECPA does not cover the interception of messages by parties within a company. In this "legal vacuum," firms have taken a number of different approaches to address the issue of e-mail privacy.

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