Electronic communications: they may not be as private as you think.

Senate Bill 652 (The Telecommunications Competition and Deregulation Act of 1995) introduced in March 1995, would amend portions of the Electronic Communications Privacy Act and may be of some limited use in protecting employee privacy rights

The rapid development of technology including electronic mail (e-mail), electronic database transactions, and the Internet has created issues which are in their legal infancy, and in the near future must be addressed by the courts and/or federal and state legislatures. One key issue involves the conflict between the employer who claims a right to review employees' e-mail messages, and the employee who asserts that e-mail should be accorded the same privacy rights as mail or telephone transmissions.

To date no such case has reached either the U.S. Supreme Court or a state supreme court; therefore, no specific legal precedent directly relating to employee rights of privacy in their e-mail communications exists. To clarify these rights, the courts will rely on a combination of constitutional, statutory and common law.

Constitutional Privacy Rights

In part, the Fourth Amendment to the Constitution of the United States provides that people shall have the right of protection against unreasonable searches and seizures. Although the Fourth Amendment provides for privacy rights, it affords minimal protection for e-mail users. The primary purpose of the Fourth Amendment is to protect individuals from unreasonable searches and seizures by the federal government. The Fourteenth Amendment to the U.S. Constitution has been interpreted by the U.S. Supreme Court to make the more fundamental constitutional provisions of the first ten amendments (Bill of Rights) applicable to the states, and thereby prohibits unreasonable searches and seizures by state governments. Thus, public sector employees would have the benefit of some constitutional protection, while private sector employees (assuming a non criminal investigation), would have virtually none.

Common Law Privacy

Common law may provide some protection for senders of e-mail under the tort of "intrusion into seclusion." This cause of action is found in the Restatement (Second) of Torts (sec. 652B) which in essence provides that an intentional intrusion upon another's solitude or seclusion will give rise to a lawsuit if such intrusion is highly offensive to a reasonable person. Although other categories of invasion of privacy exist, the most likely common law cause of action against an employer for invasion of privacy would be an action based upon intrusion into seclusion. Unlike other invasion of privacy theories, intrusion into seclusion requires no dissemination to others of the information obtained. In other words, the mere obtaining of the information without permission is the essence of the wrongful invasion.