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Copyright (c) 2004 Cumberland Law ReviewCumberland Law Review

2004 / 2005

35 Cumb. L. Rev. 639

LENGTH: 14846 words

COMMENT: PRIVACY IN THE GOVERNMENT WORKPLACE: EMPLOYEES' FOURTH AMENDMENT AND STATUTORY RIGHTS TO PRIVACY

NAME: Rachel Sweeney Green

SUMMARY:... Today's workplace is drastically different from the workplace of a half-century ago. ... Although there is a lack of judicial precedent dealing with employer monitoring of telephone and oral communications for criminal misconduct in the workplace, courts have considered the issue of whether a search of an employee's computer and e-mail is reasonable when it provides evidence of criminal misconduct. ... " However, due to the nature of e-mail and Internet operations, carefully crafted and correctly implemented employer monitoring policies, and the courts' reliance upon a statutory framework for analysis of employees' Fourth Amendment rights, the end result is a noticeable difference between employees' privacy rights in using a telephone and using a computer. ... For several reasons, courts are reluctant to hold that an employee has a reasonable expectation of privacy in his use of e-mail or Internet in the workplace. ... Conversely, where an employer's computer and electronic communications monitoring policy is insufficient or incorrectly followed, courts are more likely to find that an employee's subjective expectation of privacy is also objectively reasonable. ... Criticisms of Judicial Interpretation of the Application of the Electronic Communication Privacy Act to the Monitoring of an Employee's Electronic Communications ...  

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I. Introduction

Today's workplace is drastically different from the workplace of a half-century ago. Technological advances have made it practical and inexpensive for employers to utilize the most modern of communication devices. While the telephone has long been standard in the workplace, use of computers is rising. The number of employees using e-mail and the Internet at work increased from eighteen percent in 1998 to almost forty-two percent in 2001. n1 In addition, the means by which employers may monitor an employee's conduct are also increasing. Workplace monitoring is becoming a common occurrence and a serious concern in both the private and public sectors.

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As workplace monitoring increases, the prevalence of employee claims that such monitoring violates their expectations of privacy increases correspondingly. While the private sector employee can expect little protection from employer intrusion, a public sector employee may rely on his Fourth Amendment right to privacy to defend him against unreasonable searches by his employer. n2 In addition, the Electronic Communications Privacy Act n3 provides another important vehicle to safeguard public employee rights. When analyzing the privacy rights of the government employee in the workplace, however, it is critical to bear in mind that the rights of the individual must be balanced against the right of the government to maintain an efficient and productive workplace.

Privacy rights of employees are frequently examined by commentators; most have concluded that recognized rights to privacy in the workplace are lacking in both the private and public sectors. n4 A common criticism is that the privacy that is afforded government employees is insufficient, especially concerning the monitoring of employee e-mail and Internet use. n5 This criticism is usually the result of a mistaken focus on the subjective expectations of the average employee regarding the use of such mediums. n6 Commentators also argue that the privacy afforded to an employee's telephone conversations should apply to e-mail and Internet use as well. n7

As this Comment will show, an employee's expectation of privacy cannot prevail if it is unreasonable. Due to the nature of e-mail communications and Internet use, an employee's expectations of privacy are often unreasonable and sometimes outright absurd. E-mail communications and Internet use are inherently "open" to numerous viewers, including the employers who provide or maintain office network systems and e-mail services. n8 In addition, well-crafted monitoring policies will often ensure that a government employee is aware that any expectations of privacy he or she may harbor are unfounded in both electronic and wire communications. Finally, an examination of the law in this area demonstrates that the safeguards the law currently provides to protect reasonable expectations of employee privacy are correctly tailored to guarantee that government employers will not invade an employee's right to privacy while still ensuring that the efficiency of the government workplace is not hindered.

This Comment will attempt to show the different constitutional and statutory means by which the privacy interests of the public sector employee are protected. It will examine the differing treatment of monitoring of the traditional oral and wire forms of employee communications and how the courts are attempting to cope with difficulties posed by advanced technologies such as e-mail communications and the Internet. Finally, this Comment will examine and respond to the common criticisms of the current judicial and statutory protections of public employees' privacy interests.

II. Monitoring Employee Communications

There are many reasons why employers may find it desirable or necessary to monitor employee conduct. First, employee monitoring may help an employer to determine whether employees are misusing resources or time. n9 This is especially important concerning employee use of computer resources; because improper personal use of office computer resources not only decreases employee productivity, it may also decrease the efficiency of office computers and computer

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networks. n10 Despite inferences drawn by employees to the contrary, the primary motivation for monitoring of employee communications is not to search for evidence of misconduct, and certainly not to uncover evidence of criminal misconduct, but to protect workplace efficiency. In a recent study of private companies by the United States General Accounting Office, officials of the companies studied stated that monitoring of stored data was used principally to back up files, to manage computer resources, and to track the system's capacity. n11 Eight of the fourteen companies surveyed further stated that the contents of employee e-mails would only be read as a result of an investigation based upon other evidence of workplace misconduct. n12 As the case law examined in this Comment suggests, inappropriate employee use of office communications resources-especially misuse of electronic communication mediums -- is common. This may have severe detrimental effects on the efficiency and productivity of office communication systems. As one analyst notes, an office T-1 line's performance may be slowed or even halted by as little as two employees simultaneously watching a 90-second movie trailer. n13 This demonstrates that monitoring of employee communications is necessary to promote an efficient workplace in the public sector as well as the private.

Employee monitoring may also be necessary to prevent theft or disclosure of proprietary and confidential information. n14 Employee monitoring is also an important means of preventing misconduct by employees that is illegal or that might subject the employer to liability. n15 Increasingly, employees are using e-mail and the Internet to conduct criminal activities, violate copyright law, or engage in harassment. n16 This is especially detrimental to employers because e-mails and statements made over the Internet are increasingly used as evidence in litigation. n17 In addition, inappropriate e-mails and Internet usage may create a hostile work environment that can subject employers to suit. n18

For these reasons, monitoring of employees has become more frequent and may result in discipline or termination of employees. In the United States General Accounting Office study of employee monitoring practices in private sector companies, all fourteen of the companies interviewed stored their employees' electronic transactions, and eight stated that they would review those transactions if they suspected that the employee was engaged in work-related misconduct. n19 Six of these companies regularly reviewed and analyzed such transactions to find evidence of resource misuse or inappropriate computer uses. n20 Of companies that monitor their employees' e-mail use and Internet access, inappropriate use of these office resources often results in discipline or termination. n21 In fact, according to a 2002 Washington Internet Daily release, sixty-seven percent of private employers have disciplined or terminated employees for inappropriate use of the Internet or e-mails. n22 Such widespread monitoring has serious implications for employee privacy issues in the general workplace. In the public sector workplace, where an employee's Fourth Amendment rights may provide a greater expectation of privacy than a private sector employee would have, the implications may be critical.

III. Fourth Amendment Analysis of the Monitoring of Employees' Oral and Wire Communications

A. Employee Expectations of Privacy

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Surveillance and monitoring of government employee telephone calls and conversations are governed first by the Fourth Amendment right to be protected against unreasonable searches and seizures. n23 The United States Supreme Court set out the test applied in such circumstances in O'Connor v. Ortega, n24 which addressed a search by a government employer of the office of a government employee. n25 The Court first noted that searches and seizures by government employers of employee property are subject to the constraints of the Fourth Amendment. n26 When such searches occur in a government workplace, however, courts must "balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace." n27

The Court in O'Connor provided a two-prong test to determine whether an employee possesses a reasonable privacy interest that must be protected from employer interference. n28 First, courts must inquire "whether the defendant is able to establish an actual, subjective expectation of privacy[.]" n29 Second, courts ask "whether that expectation of privacy is one which society would recognize as reasonable." n30 The Court also added that "public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation." n31 Thus, the reasonableness of an employee's privacy interest must be balanced against the government employer's interests.

As applied to the privacy interests of government employees in their telephone calls and conversations in the workplace, the subjective test of a reasonable expectation of privacy is easily satisfied. Courts generally will examine the nature and content of the conversation and find that the employee would not have engaged in such communication if he had not expected that it would remain private. n32 In the words of one Sixth Circuit Judge: "the frank nature of the employees' conversation makes it obvious that they had a subjective expectation of privacy . . . no reasonable employee would harshly criticize the boss if the employee thought that the boss was listening." n33

Employees must next prove that their subjective expectation of privacy is objectively reasonable. n34 In determining the reasonableness of an employee's expectation of privacy, courts often look at the sufficiency of an employee's efforts to maintain privacy in his communications. Conducting conversations in isolated spaces, when no one else is present and when the telephone is not in use, helps to ensure that the communications will remain private and will support the reasonableness of the employee's expectation of privacy. n35

The United States Court of Appeals for the Fifth Circuit has identified a list of factors that will be considered when determining the reasonableness of an employee's expectation of privacy, including:

(1) the volume of the communication or conversation; (2) the proximity or potential of other individuals to overhear the conversation; (3) the potential for communications to be reported; (4) the affirmative actions taken by the speakers to shield their privacy; (5) the need for technological enhancements to hear the communications; and (6) the place or location of the oral communications[.] n36

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Thus, the reasonableness of an employee's expectation is often affected by whether the employee took reasonable measures to safeguard that expectation.

Government employers may also take measures to reduce an employee's expectation of privacy. Most notably, an employee's claim of an expectation of privacy is often defeated by specific and carefully followed policies providing notice that the employee's conduct and communications may be monitored by the employer. n37 Police stations in particular often monitor both incoming and outgoing calls to ensure workplace efficiency, and courts will usually find that an employee's expectation is unreasonable where the employee has notice of such a policy. n38 This rationale also extends to the monitoring of telephone calls in other offices, but preferably the monitoring should be conducted in the ordinary course of business, not during an investigation of specific misconduct, and it is essential that the employee is given notice that monitoring or surveillance will be conducted. n39 Thus, a well-drafted and carefully implemented employer monitoring policy can help to defeat employees' claims that their privacy interests have been violated by employer surveillance.

Where an employer's policy is insufficient or is not carefully followed, however, a government employee's privacy expectation may be considered reasonable despite the presence of a monitoring policy. Where a policy is ambiguous or where the policy conflicts with other instructions given to employees, a court may hold that the policy does not provide sufficient notice to employees that they cannot expect privacy in their communications. n40 In addition, where a policy provides notice only of certain surveillance measures, it will not be held to provide notice to additional surveillance measures that may be added. n41 It is important for employers to evaluate their monitoring policies to ensure that they provide sufficient notice of the monitoring measures used, the purpose of the monitoring, and the consequences that may result if the monitoring produces evidence of employee misconduct. In addition, monitoring policies should be routinely implemented and strictly followed.

B. Unreasonable Searches and Seizures

Even if an employee can show a reasonable expectation of privacy, he must still prove that the search or seizure conducted by the government employer was unreasonable in order to succeed in his Fourth Amendment claim. In O'Connor, the Supreme Court of the United States held that intrusions by a public employer upon the reasonable privacy interests of public employees for work-related purposes must be judged by a standard of "reasonableness under all the circumstances." n42 This standard will be met where the action was "'justified at its inception[,]'" and where the scope of the search is reasonably related to the justification for commencing the search. n43 The Court further provided that a search by an employer will usually be "justified at its inception" where there are "reasonable grounds" for suspicion that the search will provide evidence of work-related misconduct or where the search is necessary for a non-investigatory purpose. n44 Unlike most government searches, probable cause is not required for a search by a government employer for evidence of work-related misconduct by an employee. n45 This is because "public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner[,]" which requires that a lower standard of cause be imposed upon the employer. n46

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While an employer search will usually be found reasonable when it is conducted to produce evidence of work-related miscon duct, the results vary somewhat when the work-related misconduct is also criminal misconduct. Where the search is conducted by a government employer primarily to further a criminal investigation, the stricter requirements of probable cause and a warrant requirement may apply. n47 Although there is a lack of judicial precedent dealing with employer monitoring of telephone and oral communications for criminal misconduct in the workplace, courts have considered the issue of whether a search of an employee's computer and e-mail is reasonable when it provides evidence of criminal misconduct. In such a situation, courts generally hold that the employer is entitled to a lower standard of cause when the search is conducted primarily to produce evidence of workplace misconduct, regardless of its dual nature. n48 Courts have found that such a search does not require a more stringent probable cause standard because the government employer will not "lose its special need for 'the efficient and proper operation of the workplace,' merely because the evidence obtained was evidence of a crime." n49

IV. Analysis of the Monitoring of Employees' Oral and Wire Communications under the Electronic Communications Privacy Act

A. Employer Liability Under the Electronic Communications Privacy Act

Where the employee is unable to show that monitoring and surveillance by the employer amounted to a violation of her Fourth Amendment rights, she may instead subject the employer to liability under the Electronic Communications Privacy Act ("ECPA"). n50 Claims under the ECPA are based upon illegal interception of protected communications. Title I of the ECPA, also known as the Federal Wiretap Act, provides that "Any person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided . . . or shall be subject to suit[.]" n51 "Intercept" is defined within the code as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." n52 Thus, an employer may be found liable under the Wiretap Act for acquiring, through the use of a device, the contents of an employee's oral or wire communication.

Similar to a Fourth Amendment analysis, in determining the liability of a government employer under the Electronic Communications Privacy Act, the employee whose communication is intercepted must possess a subjectively and objectively reasonable expectation of privacy in the communication. n53 Thus, the same factors that are utilized in a Fourth Amendment analysis of the employee's privacy expectations must also be applied in determining liability under the ECPA. However, a claim under the ECPA differs from a Fourth Amendment claim in that the employee must prove an "interception" in violation of the statute rather than an unreasonable search and seizure. In addition to encompassing claims of privacy invasions that fail to violate the Fourth Amendment, n54 the Sixth Circuit has suggested that ECPA statutory claims will preempt a Fourth Amendment claim where it is conceded that the statute provides sufficient constitutional protection. n55 Thus, the ECPA provides an important -- and sometimes the only -- means of imposing liability on an employer for monitoring of government employees.

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B. Exceptions to Employer Liability Under the Electronic Communications Privacy Act

While the Electronic Communications Privacy Act does provide another means of establishing liability for the monitoring and recording of employee communications, there are several exceptions to the Act that may protect a government employer from liability. The first is the provider exception, which allows an employer that provides its own communications system to intercept employee communications to avoid liability if the interception is within the normal course of employment and the interception is the result of either a necessary activity or a need to protect the property rights of the provider. n56 Where the employer provides its own communication system and the interception occurs within the normal course of employment and to protect the employer's property, which may apply to workplace telephone monitoring, the employer will be exempted and cannot be held liable for such interception under the Federal Wiretap Act. Where the employer's communications systems are maintained by an outside provider, however, the provider exemption will usually not be available to the employer.

The "business use" exemption also protects employers from liability for monitoring and recording employee communications. This exemption provides that a device that is furnished by a provider of a communication service in the ordinary course of its business and is used by a subscriber in the ordinary course of its business will not qualify as an "intercepting device" that must be used for an interception to be prohibited by the ECPA. n57 This exemption allows employers who do not provide their own communications system to avoid liability if the interception occurs in the ordinary course of the employer's business. While "ordinary business use" is not defined in the statute, the Sixth Circuit has held that the provision requires that the use of the device be "(1) for a legitimate business purpose, (2) routine and (3) with notice." n58 Like the provider exemption, the business use exemption probably will be met if the monitoring is conducted routinely in order to prevent misuse of office resources and other work-related misconduct, and if the employer's monitoring policy provides sufficient notice to the employee. n59

The business use exemption is applicable especially if the employer is a police department because monitoring and recording of telephone communications are often routinely conducted in police departments, which increases the likelihood that such practices will be considered in the ordinary course of business of the employer. n60 In addition, a separate law enforcement exception exits that will exempt a police department from liability for recording of telephone lines, which is nearly universal in prisons and police departments. n61

A final exemption is prior consent by the employee to the interception of employee communications by the employer. While express consent is preferable, consent may also be implied by the employee's knowledge of employer monitoring practices. n62 For courts to find implied consent, however, the employer must demonstrate that it utilized a monitoring policy and that the particular employee was made aware of the policy. n63 Thus, the consent exemption is another example of how a carefully drafted and executed employer monitoring policy may help the employer escape liability for its monitoring practices.

Although most courts reject the premise, the Seventh Circuit has constructed an additional exception in refusing to hold entities liable under the Electronic Communications Privacy Act.

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Presumably the court relied upon the premise that the statute provides for liability of a "person" for illegal interception and not for liability of a "municipality." n64 Because a municipality is not technically a "person," the court held that ECPA liability does not extend to government employers. n65 The Seventh Circuit's decision in Amati v. Woodstock, however, is contrary to Congress's amendment of the ECPA. In 1987, Congress amended the Act and added the word "entity" to the definition of those who could be found liable under the provision, and since the amendment, most courts agree that governmental entities are included among parties that may be held liable for interception of oral and wire communications. n66

V. Fourth Amendment Analysis of the Monitoring of Employees' E-mail Communications and Internet Use

When evaluating the constitutionality of employer monitoring of e-mails, courts will apply the same two-prong test as applied to employer monitoring of telephone conversations. Courts will require the employee to establish a subjective expectation of privacy and also to show that his subjective expectation of privacy is "one which society would recognize as reasonable." n67 However, due to the nature of e-mail and Internet operations, carefully crafted and correctly implemented employer monitoring policies, and the courts' reliance upon a statutory framework for analysis of employees' Fourth Amendment rights, the end result is a noticeable difference between employees' privacy rights in using a telephone and using a computer.

A. Employee Expectations of Privacy

As with employee wire communications, it is relatively easy to satisfy the test of a subjective expectation of privacy in an employee's electronic communications. Courts usually will find from the content of the communication that the employee must have believed the communication would remain private; otherwise the employee would not have made it. n68 In addition, precautions taken by the employee to ensure privacy will often be considered when applying the subjective standard of reasonableness. n69 Even where passwords are shared and computers are accessed by others, courts will still accept that the employee retains some subjective expectation of privacy in the contents of communications. n70

It is in the application of the requirement that the employee's expectations be objectively reasonable -- where the courts asks whether society is prepared to accept the particular expectation of privacy -- that the employee is overwhelmingly defeated. n71 For several reasons, courts are reluctant to hold that an employee has a reasonable expectation of privacy in his use of e-mail or Internet in the workplace.

The idea that government employees do not have a reasonable expectation of privacy in their e-mail use in the workplace is predicated upon the essential nature of e-mail communication, especially when the employer is the provider of the e-mail system. The operation of an e-mail system is such that the communication is exposed to multiple computers before it reaches its final destination. n72 Even after the message is received by its intended recipient, the content of the communication is still easily accessible by others. n73 For example, when an e-mail is "sent" by its composer, the message is first sent to the user's internet service provide ("ISP"), which looks at and copies the e-mail and then sends a copy to the recipient's ISP. n74 When the recipient

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requests the e-mail, a copy will then be sent to the recipient by her ISP. n75 Thus, the contents of an e-mail communication will be disclosed to its recipient, the ISPs of both sender and recipient, as well as other computers during transmission between ISPs. n76 The open nature of the operation of e-mail communication leads some commentators to compare e-mail communications to postcards rather than regular postal mail. n77

While the average employee may not understand this essential distinction between e-mail communications and postal mail, courts do consider the technological facts when determining whether an employee's expectation of privacy is reasonable. This is especially true where employer monitoring policies provide notice to employees that e-mail communications and Internet use are susceptible to access and review by the employer. n78 A well-drafted employer policy reserves the right to view or scan files or software stored on the employee's computer or in the employer's system network, provides that monitoring will be conducted randomly or for cause, specifies legitimate and prohibited uses of computer and network equipment, and informs the employee of the consequences of misuse. n79 Where an employer monitoring policy specifically and clearly delineates this information to the employee, courts will hold that the employee could have no reasonable expectation of privacy in light of the employer's warning to the contrary. n80

Conversely, where an employer's computer and electronic communications monitoring policy is insufficient or incorrectly followed, courts are more likely to find that an employee's subjective expectation of privacy is also objectively reasonable. In Leventhal v. Knapek, n81 the Second Circuit Court of Appeals upheld an employee's expectation of privacy in the software downloaded onto his office computer as objectively reasonable. n82 The Department of Transportation did not specifically prohibit storage of personal materials on office computers and did not routinely monitor or access the data stored on employees' computers, so there was no notice to Leventhal that his office computer was not subject to an expectation of privacy. n83 Likewise, in United States v. Slanina, n84 the Fifth Circuit found a reasonable expectation of privacy with respect to files on a city fire chief's office computer where there was an "absence of a city policy placing Slanina on notice that his computer usage would be monitored[.]" n85 This was true even though the computers were owned by the city, the employee was aware that some access to the computer by the city might be necessary for maintenance and repairs, and Slanina gave his password to the computer technician who found evidence of child pornography on the computer. n86 Thus, while a carefully crafted computer and e-mail monitoring policy may be fatal to a public employee's Fourth Amendment claim, the lack of such a policy or a misapplied policy may be equally detrimental to a public sector employer's interests.

Another factor in determining the reasonableness of the employee's expectation of privacy is the employee's own attempts to secure such privacy in the workplace. If an employee takes measures to ensure privacy in his office, computer, and e-mail communications, it is more likely for courts to hold that his expectation of privacy was reasonable. n87 Efforts to close and lock office doors and installation of passwords on computers and e-mail accounts are not determinative, but these steps may help to create a reasonable expectation of privacy. n88 This remains true even if a limited number of others have access to the employee's office and computer. n89 Efforts to delete data or communications from a computer, however, do not constitute sufficient measures to maintain privacy and to ensure that the subjective expectation of privacy will be reasonable. n90

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This is especially true where the employer maintains a monitoring policy that gives notice to the employees that deleted data may still be stored and retrieved by the employer. n91

Although courts may consider these factors in determining objective reasonableness, some courts will apply such factors only towards the determination of the employee's subjective expectation. In addition, some courts hold that the existence of e-mail and computer passwords does not support a finding of objective reasonableness when such a finding would conflict with information contained in the employer's monitoring policy. n92 Thus, while courts may consider whether an employee takes reasonable measures to ensure privacy, the results of such an application are uncertain and usually are given far less weight than employer actions and monitoring policies.

B. Unreasonable Searches and Seizures

Even if an employee has shown that his expectation of privacy was objectively reasonable, he must still prove that the search and seizure of his office equipment was unreasonable within the meaning of the Fourth Amendment in order for his invasion of privacy claim to be successful. Workplace searches by a public employer for work-related purposes must be judged by a standard of "reasonableness under all the circumstances" and not by a higher "probable cause" standard. n93 This standard will be met where the action was "'justified at its inception'" and where the scope of the search is reasonably related to the justification for commencing the search. n94

The search of a public employee's computer or email is justified at its inception provided that the employer has reasonable grounds to believe that the employee's computer files or stored e-mail contain evidence of work-related misconduct, such as the inappropriate use of office computer resources. n95 Work-related misconduct also includes that which will subject the employee to criminal liability. n96 Thus, a reasonable ground to suspect either criminal or non-criminal misconduct is sufficient to justify a search by the employer at its inception, as long as the misconduct is work-related. In addition, non-investigatory searches or intrusions -- such as accessing an employee's computer files or e-mails to retrieve a needed file or for maintenance and repairs -- will also be justified if they are work-related. n97

For an employer search to be found reasonable, its must also be reasonable in scope in relation to the justification for the search. In United States v. Slanina, n98 the full search of an employee's computer and disks was reasonable where there were grounds to suspect the presence of child pornography on the computer. The city provided the computer, and city policy expressly prohibited its use to access pornography. n99 In Leventhal v. Knapek, n100 a search of a Department of Transportation employee's computer files produced evidence that the employee had installed prohibited software on his office computer in order to conduct a separate tax preparation business while at work. n101 The search was prompted by an anonymous allegation that the employee spent significant work time on personal matters. Despite the vagueness of the allegation, which did not contain a specific reference to the employee's inappropriate computer use, the court held that the search was reasonable in scope. n102 In addition, an employer may enter an employee's office and search his office computer and files to retrieve computer

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resources belonging to the employer, regardless of the employee's reasonable expectation of privacy in his office space. n103

C. Criticisms of the Courts' Analysis of the Fourth Amendment Privacy Rights of Employees in Their E-mail Communications and Internet Use

There is much criticism regarding the courts' treatment of the Fourth Amendment rights of government employees in workplace searches. Most commentators lament the lack of privacy, particularly in terms of the difference between privacy rights in wire communications and electronic communications. n104 Commentators most often criticize the judicial determination that because e-mail communications and computer files are easily accessible by employers and other system providers, these forms of communication do not create a reasonable expectation of privacy. n105 Commentators generally agree that this conflicts with the actual expectations of the users. n106 In addition, it is argued that there is conceptually little difference between the contents of an e-mail communication and the contents of a telephone communication, and, therefore, there is little justification for finding that there is an expectation of privacy in the one but not the other. n107

One earlier criticism has essentially been disproven -- that a lack of privacy rights in electronic communications would discourage the growth of new technology. n108 This fear was rational, and Congress expressed its concern over the issue when the ECPA was amended to include electronic communications. n109 Even so, Internet and e-mail use continue to increase despite the nearly universal criticisms that these mediums lack privacy protections. The continued increase in usage strongly suggests that growth of communication technologies will not be hindered by judicial interpretations of the Fourth Amendment protection of these mediums.

VI. Analysis of the Monitoring of Employees' E-mail Communications and Internet Use Under the Electronic Communications Privacy Act

Besides the Fourth Amendment, disgruntled government employees may also bring claims under the Electronic Communications Privacy Act n110 when they believe their e-mail or computer privacy interests have been invaded. While the ECPA governs e-mail and Internet use as well as wire communications, courts have interpreted the protection provided under this statute governing electronic communications quite differently from the protections afforded to oral and wire communications. Although most wire communications fall under the purview of the Federal Wiretap Act, n111 because of the nature of e-mail communications, the Wiretap Act usually will not apply to electronic communications and e-mail communications. Internet use usually will be protected from employer intrusion only by Title II of the ECPA, also known as the Stored Communications Act. n112

A. Title I -- The Federal Wiretap Act

Under Title I of the Electronic Communications Privacy Act: "Any person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided . . . or shall be subject to suit[.]" n113 "Intercept" is defined within the code as "the aural or other

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acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." n114 On its face, therefore, the statute appears to apply to electronic communication in the same manner that it applies to oral and wire communications. However, judicial determination of the applicability of Title I to e-mail communications and Internet use has hinged on the definition of "intercept" as it applies to the technical process used to transmit an electronic communication and has produced a very different outcome than the application of the same term to oral and wire communications.

1. "Interception" of an Employee's Electronic Communications Under the Federal Wiretap Act

Steve Jackson Games, Inc. v. United States Secret Service, n115 decided by the Fifth Circuit Court of Appeals, sets forth the original construction of the Federal Wiretap Act as it applies to e-mail communications and Internet use. n116 In Steve Jackson Games, the court decided whether the seizure of a computer and the e-mail stored upon the electronic bulletin board operated by that computer constituted an interception under the Federal Wiretap Act. n117 In reaching its decision, the court found it instructive that while the definition of wire communication included "any electronic storage of such communication" n118 the definition of electronic communication did not include a provision for electronic storage of electronic communications. n119

The court found that the e-mail at issue was an electronic communication that was in "electronic storage." n120 The court also held that the use of the word "transfer" in the definition of "electronic communication" and the lack of a provision for storage in the definition of electronic communications reflected a congressional intent for "intercept" to apply to electronic communications only during the transmission of such communications and not when they are in storage. n121 Because the e-mails at issue had already been transmitted and were waiting in electronic storage on the electronic bulletin board to be accessed by their recipients, the court found that the e-mails had not been illegally intercepted under the Federal Wiretap Act. n122 Thus, an e-mail communication will only be protected from interception by Title I of the ECPA when it is in transmission. Once it has been transmitted and is placed in electric storage on an ISP, it cannot be "intercepted" within the meaning of the statute.

The decision in Steve Jackson Games has been followed by most courts deciding the issue of the Federal Wiretap Act's applicability to e-mail communications and Internet use. n123 While most decisions addressing the issue emerge from federal district courts, the Ninth Circuit Court of Appeals recently considered the issue in Konop v. Hawaiian Airlines, Inc., n124 and after some initial confusion, chose to follow the rationale of the Fifth Circuit. n125 In Konop, an officer of the employer used another employee's name to access a website maintained by Konop on which Konop criticized his employer and its officers. n126 Konop claimed that the employer's view ing of the website constituted an illegal interception under the Federal Wiretap Act. n127 The court followed the narrow definition of "intercept" found in Steve Jackson Games and added that the amendment to the Federal Wiretap Act effected by the USA PATRIOT Act n128 eliminated storage from the definition of wire communications, providing further support for a narrow construction of "intercept." n129 Because the information found on Konop's website was in electronic storage rather than transmission, the court held that the employer's actions in accessing the web site using another employee's name did not constitute an illegal interception under the Federal Wiretap Act. n130

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2. Exceptions to Employer Liability Under the Federal Wiretap Act

The nature of e-mail is such that communications travel at the speed of light; therefore, the window of time where an electronic communication can be intercepted during transmission is miniscule. n131 As a result, employees will have great difficulty bringing a claim against an employer for a violation of the Federal Wiretap Act resulting from the monitoring of the employee's e-mail communications or Internet access. This difficulty is especially apparent when certain statutory exceptions further limit the circumstances in which an electronic communication may be intercepted in violation of the Act. These exceptions were specifically created to protect common monitoring situations and will often apply to employer monitoring of employees.

The first exemption provides that where the employee has given prior consent to the employer's monitoring practices, the employer cannot be held liable for such practices under the ECPA. n132 An employee may expressly give consent, or consent may be implied from the terms of an employer's monitoring policy where the employee has notice of the policy. n133 The actual monitoring, however, must closely conform to the policy, and implied consent to monitoring practices specified in the policy will not be construed to provide implied consent to other practices that are not specifically defined in the policy. n134 Thus, the consent exemption has a similar application to electronic communications as to wire and oral communications.

A second exemption that may shield employers from liability is the "business use" exemption that excludes from the definition of intercept those interceptions acquired by "telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service . . . being used by the subscriber or user in the ordinary course of its business[.]" n135 For this exemption to apply, the employer must be classified as the system provider or a subscriber, and the interception would have to be made in the ordinary course of its business. As previously mentioned regarding the exception's application to wire communications, n136 the employer's monitoring must be "(1) for a legitimate business purpose, (2) routine and (3) with notice." n137 Commentators suggest that a random employer policy of e-mail and Internet use monitoring to detect computer resource abuses would probably constitute interceptions made in the ordinary course of business, but the full extent to which this exemption may be utilized by employers remains unclear. n138

3. Criticisms of Judicial Interpretation of the Application of the Electronic Communication Privacy Act to the Monitoring of an Employee's Electronic Communications

Judicial interpretation of the Federal Wiretap Act and its application to e-mails and other electronic communications has been widely criticized. The most prevalent of the criticisms is that the Federal Wiretap Act as interpreted by the Steve Jackson Games court will never apply to intrusions into electronically-stored mediums, and, therefore, the addition of "electronic storage" to the definition of wire communications has been rendered completely superfluous. n139 Many commentators advocate further amendments to the ECPA to allow electronic communications to be "intercepted" while in storage and thus to equalize the treatment of electronic and wire communications. n140 Through an amendment of the ECPA affected by the USA PATRIOT Act, n141 however, Congress eliminated storage from the definition of wire communications,

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suggesting that an equalization of the treatment of the different communication mediums is best accomplished by reducing the privacy expected in stored communications of every medium. n142

A final criticism of the judicial interpretation of electronic communications under the ECPA is that it fails to reflect the subjective expectations of society and individuals of privacy in their e-mail and Internet use. n143 Advocates of this position argue that while as a matter of judicial construction it may be easier to analogize an e-mail communication to a postcard, n144 which is disclosed to viewers during the transmission, average e-mail users will assume that their e-mail communications are at least as private as a communication by regular mail and will expect similar privacy protections. n145

B. Title II -- The Stored Communications Act

Although most employee claims against an employer for intrusion into an employee's e-mail or Internet use will fail under Title I of the Electronic Communications Act, such claims may fall under the purview of Title II, the Stored Communications Act. n146 The Stored Communications Act provides that

whoever . . . intentionally accesses without authorization a facility through which an electronic communication service is provided; or . . . intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished[.] n147

While both the Federal Wiretap Act and the Stored Communications Act create liability for interference with electronic communications, several noticeable differences exist. First, the penalties for "interception" of electronic communications are generally more severe than the penalties for "access" of stored electronic communications. n148 In addition, while both provide exceptions that allow the party interfering with the communication to escape liability, the exceptions under the Stored Communications Act seem broader, both in language and interpretation, and this is especially the case in the field of employer access. n149

1. Exceptions to Liability Under the Stored Communications Act

There are two common exemptions by which an employer may avoid liability for access of electronic communications under the Stored Communications Act. n150 The first protects against employer liability when an employee has given express prior consent to any interception or access of e-mail contained in electronic storage. n151 The language of the Stored Communications Act provides liability only for one who "intentionally accesses without authorization a facility through which an electronic communication service is provided[.]" n152 Subsection (c) of the same section further specifies that liability does not attach with respect to "conduct authorized" by the service provider or the user to whom the communication was intended. n153 While an effective monitoring policy consented to by the employee and routinely followed by the employer can provide express consent, courts may also imply consent to access from the employer-employee relationship and the use of employer equipment.

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The second exemption, known as the "provider exemption," shields the provider of the electronic communications service or persons authorized by the provider from liability for accessing communications. n154 In Bohach v. City of Reno, n155 the court applied the provider exemption to a police department employer that had accessed alphanumeric pages between officers while they were stored on the department's computer network and held that the employer was exempted from liability under the Stored Communications Act because the police department was the provider of the alphanumeric pager service. n156 Because alphanumeric pages are electronic communications similar to e-mails, it is likely that the provider exception may be applied to e-mail access by employers where the employer provides its own e-mail service.

VII. Treatment of Pagers and Voice Mail Under the Electronic Communications Privacy Act

At this point it is worth noting that voice mail and pagers, while they may seem to an individual to have a greater relation to telephones than computers, are usually included by courts under the Stored Communications Act and are conceptually more similar to e-mails and Internet websites. n157 This means that while employers may be liable for interception of telephone conversations under the Federal Wiretap Act, they are much less likely to be held liable for the access of those same communications once they are stored as voice mail messages. n158 In addition, the provider and business use exceptions may apply to employer access if employers provide their own pager or voice mail systems. n159 Some courts, however, may choose to treat the storage of wire communications differently from the storage of electronic communications, so illegal interception of voice mail may be more likely to occur than illegal interception of e-mail. n160

The uncertainty of the application of the Electronic Communications Privacy Act to voice mail is one reason why some commentators criticize the judicial construction of the statute that allows for different interpretations of the same message depending on the medium used to transmit the communication and at what point in the process the interference by an outside party occurs. n161 In addition, the USA PATRIOT Act has further altered the statutory language by removing stored wire communications from the definition of wire communications. n162 Due to the differing interpretations given by courts, however, it remains to be seen how this reclassification will affect judicial treatment of accessed voice mail messages.

VIII. Conclusion

The consensus among commentators seems to be that employee privacy rights are nonexistent in the private sector and severely deficient in the public sector. n163 In the public sector, commentators advocate amendment of the ECPA n164 and a stronger role for the employee's subjective expectations of privacy. n165 These recommendations, however, are misguided in several ways.

First, an employee's subjective expectation of privacy should not be given greater weight when it is objectively unreasonable. While employees may believe that their e-mails share as much or greater privacy than other methods of communication, it cannot be overlooked that their subjective expectation is wrong. The nature of e-mail and the ability of others to obtain easy access to the contents of an e-mail communication cannot be changed merely because the average employee has a misconception about the operation of a certain technology. Thus, courts

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are correct in finding that an employee's expectations of privacy in electronic communications are unreasonable.

In addition, the primary benefit of expanding employee privacy rights to conform the law to the employee's expectations cannot outweigh the burden it will place on employers in their attempts to ensure an efficient workplace. Rather, the current emphasis on employer monitoring policies is better crafted to ensure reasonable privacy for employees while allowing employers to take necessary and reasonable measures to regulate the government workplace. When courts require that employers maintain sufficient monitoring policies and obey the statutory and Fourth Amendment requirements in implementing these policies, the employee is given notice that his workplace communications are not private. If the employee is reasonable, he or she will accordingly refrain from engaging in misconduct in the workplace. At the same time, an employer's right to prevent potential liability, employee misconduct, and abuse of office resources is protected.

Furthermore, these commentators often ignore the detrimental effects that an expansion of employee privacy rights would cause. Statistics show that even with a lack of privacy rights and frequent monitoring of employees, a sufficient amount of employee time and employer resources are still devoted to employee misconduct, especially in computer and e-mail use. n166 Such misconduct may subject the employer to civil liability, a further drain on government resources. n167 If employee privacy rights were expanded, it likely would increase employee misconduct in the workplace and further decrease government efficiency. Unlike misconduct in the private sector, misconduct that decreases government efficiency is detrimental not only to the employer but to society as a whole.

Commentators focus too much on the rights of employees and fail to see the reality that employee misconduct is common, and it is absolutely necessary for employers to take some measures to avoid inefficiency and potential liability for employee actions. If the privacy rights of government employees were further expanded, it would be necessary for government employers to find other measures to prevent employee misconduct. Government employers might be required to eliminate any pretense of privacy in government offices, returning to an era when employees experienced no privacy and were constantly under the watchful eye of a supervisor, which would likely have a detrimental effect on employee satisfaction and productivity. Employers may also be forced to eliminate personal use of all office resources, which may become the only legal means of preventing employee misconduct and abuse of office communication systems.

The Fourth Amendment guarantees United States citizens the right to be free from unreasonable searches and seizures. n168 This right has been protected against government employers as well as law enforcement agencies. It cannot be denied that this is an important interest. But employers also have a compelling interest in ensuring an efficient workplace. Nowhere is this truer than in the public sector, where an inefficient workplace often means an inefficient government.

The privacy of government employees is also protected by the Federal Wiretap Act n169 and the Stored Communications Act. n170 A government employer can incur civil and criminal liability for an unreasonable intrusion into the protected privacy interests of its employees. It is important

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for such a statutory remedy to be construed carefully so as not to infringe upon the government's interest in an efficient workplace. Although the reasonable privacy interests of an employee should be protected, society's interest in a productive and effective government should not be sacrificed to an employee's unreasonable expectation of privacy. The Constitution guarantees a right to privacy, but it is important to bear in mind the public character of the workplace where the employee attempts to exercise his right to privacy and to carefully balance the individual interests of the employee with the interest of society in an efficient government.

Legal Topics:

For related research and practice materials, see the following legal topics:Computer & Internet LawCriminal OffensesGeneral OverviewLabor & Employment LawEmployee PrivacyInvasion of PrivacyComputer & Internet LawPrivacy & SecurityCompany Communications

FOOTNOTES:

n1 United States General Accounting Office, General Accounting Office: Employee Privacy: Computer-Use Monitoring Practices and Polices of Selected Companies, SEVENTH ANNUAL INTERNET LAW INSTITUTE, at 1049, 1058 (PLI Patents, Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. 755, 2003) [hereinafter GAO].

n2 U. S. CONST. amend. IV.

n3 18 U.S.C. § § 2510-2522 (2002); 18 U.S.C. § § 2701-2711(2002).

n4 See, e.g., Matthew Hector, Privacy to Be Patched in Later -- An Examination of the Decline of Privacy Rights, 36 J. MARSHALL L. REV. 985 (2003); Laurie Thomas Lee, The USA PATRIOT Act and Telecommunications: Privacy Under Attack, 29 RUTGERS COMPUTER & TECH. L.J. 371 (2003); Michael S. Leib, E-mail and the Wiretap Laws: Why Congress Should Add Electronic Communication to Title III's Statutory Exclusionary Rule and Expressly Reject a "Good Faith" Exception, 34 HARV. J. ON LEGIS. 393 (1997); Thomas R. Greenberg, Comment, E-mail and Voice Mail: Employee Privacy and the Federal Wiretap Statute, 44 AM. U. L. REV. 219 (1994); Rich Haglund, Note, Applying Pen Register and Trap and Trace Devices to Internet Communications: As Technology Changes, Is Congress or the Supreme Court Best-Suited to Protect Fourth Amendment Expectations of Privacy?, 5 VAND. J. ENT. L. & PRAC. 137 (2003); Randolph S. Sergent, Note, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 VA. L. REV. 1181 (1995); Frank C. Morris, Jr., The Electronic Platform: Email and Other Privacy Issues in the Workplace, COMPUTER & INTERNET LAWYER, Aug. 2003, at 1.

n5 Sergent, supra note 4, at 1197-1204. See also Haglund, supra note 4, at 146-47; Orin S. Kerr, Lifting the "Fog" of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 HASTINGS L.J. 805, 812-16 (2003) [hereinafter Kerr, Lifting the "Fog"].

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n6 Sergent, supra note 4, at 1197-1204. See also Haglund, supra note 4, at 146-47; Kerr, Lifting the "Fog," supra note 5, at 812-16.

n7 Sergent, supra note 4, at 1196-97.

n8 See infra notes 70-75, and accompanying text.

n9 Tonianne Florentino, Privacy in the Workplace, FOURTH ANNUAL INSTITUTE ON PRIVACY LAW 2003: PROTECTING YOUR CLIENT IN A SECURITY-CONSCIOUS WORLD, at 553, 556 (PLI Patents, Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. 748, 2003).

n10 Morris, supra note 4, at 4. Because only seventeen percent of United States households have high-speed Internet access, employees increasingly are using their workplace computers to download material that requires a high capability. Id. This may have drastic results on the workplace network's performance. Id.

n11 GAO, supra note 1, at 1060-61.

n12 Id.

n13 Morris, supra note 4, at 4.

n14 Id.

n15 Florentino, supra note 9, at 566.

n16 Id. at 566-67.

n17 Id. at 566.

n18 Id.

n19 GAO, supra note 1, at 1057.

n20 Id.

n21 Morris, supra note 4, at 1; GAO, supra note 1, at 1063.

n22 Morris, supra note 4, at 1 (citing Lawyer, "Employers Fighting Net Abuse Must Mind Privacy," WASHINGTON INTERNET DAILY, available at http://www.warren-news.com/ currentnewsinternetdaily.htm (Apr. 24, 2002)).

n23 U. S. CONST. amend. IV. The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

19

shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

n24 480 U.S. 709 (1987).

n25 Id. at 712-14.

n26 Id. at 715.

n27 Id. at 719-20.

n28 Id. at 715-16.

n29 United States v. Slanina, 283 F.3d 670, 676 (5th Cir. 2002) (quoting United States v. Gomez, 276 F.3d 694, 697 (5th Cir. 2001)), vacated on other grounds, 537 U.S. 802 (2002).

n30 Id.

n31 O'Connor, 480 U.S. at 717.

n32 See Doris v. Absher, 179 F.3d 420 (6th Cir. 1999); Bohach v. City of Reno, 932 F. Supp. 1232, 1234 (D. Nev. 1996).

n33 Doris, 179 F.3d at 425.

n34 See supra note 29 and accompanying text.

n35 Doris, 179 F.3d at 425.

n36 Cressman v. Ellis, No. 03-50170, 2003 WL 22326602, at *2 (5th Cir. Oct. 10, 2003).

n37 Bohach, 932 F. Supp. at 1235.

n38 Id.

n39 See Sanders v. Robert Bosch Corp., 38 F.3d 736, 740-42 (4th Cir. 1994); Gross v. Taylor, No. CIV.A.96-6514, 1997 WL 535872, at *6-8 (E.D. Pa. Aug. 5, 1997); Abbott v. Winthrop Harbor Vill., 953 F. Supp. 931, 937-41 (N.D. Ill. 1996) (finding that police chief violated employee's reasonable privacy expectations where he monitored employee telephone conversations after distributing a written statement that employee calls would not be recorded).

n40 Blake v. Wright, 179 F.3d 1003, 1008-10 (6th Cir. 1999). In Blake, while the police department had a policy of monitoring both emergency and non-emergency telephone lines, where police officers were assured that they could use non-emergency telephone lines for

20

personal calls, the status of employer monitoring was ambiguous, and the policy did not provide sufficient notice to the officers that their personal conversations on non-emergency telephone lines could be recorded. Id.

n41 Lukas v. TriBorough Bridge and Tunnel Auth., No. CV-92-3680, 1993 WL 597132, *6-7 (E.D.N.Y Sept. 15, 1993). The court held that notice to employees of microphones installed in a toll booth intercom box that were used to monitor conversations inside the toll booth did not provide notice for microphones later installed in doorjambs to monitor conversations occurring outside the toll booth. Id.

n42 O'Connor, 480 U.S. at 725-26.

n43 Id. at 726.

n44 Id. The Court gave as an example of a non-investigatory purpose the need to retrieve a file from an employee's office. Id.

n45 Id. at 724.

n46 Id.

n47 Lukas, 1993 WL 597132, at *7.

n48 Slanina, 283 F.3d at 677-78, vacated on other grounds, 537 U.S. 802 (2002). In Slanina, the search was conducted to produce evidence that the employee was using government office equipment to view and store child pornography. Id. See also United States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000).

n49 Simons, 206 F.3d at 400.

n50 18 U.S.C. § § 2510-2522 (2002); 18 U.S.C. § § 2701-2711 (2002).

n51 18 U.S.C. § 2511 (2002).

n52 18 U.S.C. § 2510(4) (2002). "Wire communication" is defined as

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities[.]

§ 2510(1). The statute defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication[.]" § 2510(2).

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n53 See Doris, 179 F.3d at 425; Cressman v. Ellis, No. 03-50170, 2003 WL 22326602, *2 (5th Cir. 2003) (citing Kee v. City of Rowlett, 247 F.3d 206, 213 (5th Cir. 2001)).

n54 Walker v. Darby, 911 F.2d 1573, 1578 (11th Cir. 1990) (stating that "an action for violation of the anti-wiretap statute may be maintained even in the absence of an expectation of privacy as generally understood in the Fourth Amendment search and seizure context").

n55 Adams v. City of Battle Creek, 250 F.3d 980, 986 (6th Cir. 2001). Where there was no claim that the Wiretap Act was unconstitutional or less protective of the employee's privacy rights than the Fourth Amendment, the court refused to pass judgment upon the employee's Fourth Amendment claim, stating that "Congress made the [Electronic Communications Privacy Act] the primary vehicle by which to address violations of privacy interests in the communication field." Id.

n56 18 U.S.C. § 2511(2)(a)(i) (2002). The statute provides:

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his 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, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

Id.

n57 18 U.S.C. § 2510(5)(a)(i) (2002). The section provides:

"electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than --

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties[.]

Id.

n58 Adams, 250 F.3d at 984.

n59 Greenberg, supra note 4, at 235-36.

22

n60 Bohach v. City of Reno, 932 F. Supp. 1232, 1235 (D. Nev. 1996).

n61 Adams, 250 F.3d at 984.

n62 Lukas v. TriBorough Bridge and Tunnel Auth., No. CV-92-3680, 1993 WL 597132, at *9 (E.D.N.Y. Sept. 15, 1993).

n63 Id.

n64 Amati v. City of Woodstock, 176 F.3d 952, 956 (7th Cir. 1999).

n65 Id. The court's resolution of the issue consists only of a bald statement that "Title III does not allow for suits against municipalities." Id. The statute cited provides: "'person' means any employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation[.]" 18 U.S.C. § 2510(6) (2002).

n66 Adams, 250 F.3d at 985. Although Amati was decided after amendment of the ECPA, the court decided the issue based entirely upon the definition of "person" found in 18 U.S.C. § 2510(6) and made no mention of the addition of the word "entity." Amati, 176 F.3d at 956.

n67 Slanina, 283 F.3d at 676 (quoting United States v. Gomez, 276 F.3d 694, 697 (5th Cir. 2001)), vacated on other grounds, 537 U.S. 802 (2002).

n68 O'Connor v. Ortega, 480 U.S. 709, 717 (1987).

n69 Slanina, 283 F.3d at 676 (stating that defendant's actions of closing and locking office door and installing passwords on computer showed a subjective belief that computer contents would remain private), vacated on other grounds, 537 U.S. 802 (2002).

n70 Id.

n71 See United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002); United States v. Simons, 206 F.3d 392 (4th Cir. 2000); United States v. Bailey, 272 F. Supp. 2d 822 (D. Neb. 2003).

n72 See Sergent, supra note 4, at 1183-84. See also Orin S. Kerr, Internet Surveillance Law After the USA PATRIOT Act: The Big Brother That Isn't, 97 N.W.U. L. REV. 607, 611-15 (2003) [hereinafter Kerr, Internet Surveillance]; Kerr, Lifting the "Fog", supra note 5, at 812-15.

n73 See Sergent, supra note 4, at 1183-84; Kerr, Internet Surveillance, supra note 72, at 611-15; Kerr, Lifting the "Fog", supra note 5, at 812-15.

n74 Kerr, Lifting the "Fog", supra note 5, at 813.

n75 Id. at 813-14.

23

n76 Id.

n77 Id. at 814 (citing SIMSON GARFINKEL, PGP: PRETTY GOOD PRIVACY 8-9 (1995)).

n78 See United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002); United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000); United States v. Bailey, 272 F. Supp. 2d 822, 824 (D. Neb. 2003).

n79 See Florentino, supra note 9, at 568-69.

n80 Angevine, 281 F.3d at 1134-35. In Angevine, a professor at Oklahoma State University attempted to suppress child pornography discovered on his office computer on the grounds that the university's search of the files on his office computer violated his Fourth Amendment right to be free from unreasonable search and seizure. Id. at 1132. The university policy in place provided that the "'contents of all storage media owned or stored on University computing facilities are the property of the University.'" Id. Additionally, the university reserved the right to view and scan files or software stored on the computer for auditing purposes and specified that confidentiality of stored data, e-mail, and messages specifically could not be guaranteed. Id. at 1132-33. Finally, the university policy stated the appropriate uses of the university computers and networks and provided that misuse could result in disciplinary actions or criminal penalties. Id. at 1133.

The court stated its reluctance "to find a reasonable expectation of privacy where the circumstances reveal a careless effort to maintain a privacy interest." Id. at 1135 (quoting United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir. 1998)). Finding that the clear employer policy drastically reduced the reasonableness of a privacy expectation, the court declared "we have never held the Fourth Amendment protects employees who slip obscene computer data past network administrators in violation of a public employer's reasonable office policy." Id. See also United States v. Simons, 206 F.3d 392 (4th Cir. 2000).

n81 266 F.3d 64 (2d Cir. 2001).

n82 Id. at 73.

n83 Id. at 74.

n84 283 F.3d 670 (5th Cir. 2002), vacated on other grounds, 537 U.S. 802 (2002).

n85 Id. at 677.

n86 Id. at 676-77.

n87 See United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002); Slanina, 283 F.3d 670, vacated on other grounds, 537 U.S. 802 (2002); Garrity v. John Hancock Mut. Life Ins. Co., No. CIV.A.00-12143-RWZ, 2002 WL 974676 (D. Mass. May 7, 2002).

24

n88 Slanina, 283 F.3d at 676-77.

n89 Id.

n90 Angevine, 281 F.3d at 1135. The court found that Professor Angevine's attempts to delete the child pornography stored on his computer were insufficient to support a reasonable expectation of privacy because the university's monitoring policy warned that administrators kept file logs showing when and by whom files had been deleted. Id.

n91 Id.

n92 Garrity, 2002 WL 974676, at *2. See also McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex. App. May 28, 1999).

n93 O'Connor v. Ortega, 480 U.S. 709, 725-26 (1987).

n94 Id. at 726.

n95 See Slanina, 283 F.3d at 677, vacated on other grounds, 537 U.S. 802 (2002).

n96 See id. at 677-78. In Slanina, the search was conducted to produce evidence that the employee was using government office equipment to view and store child pornography. Id.

n97 See id.

n98 283 F.3d 670 (5th Cir. 2002), vacated on other grounds, 537 U.S. 802 (2002).

n99 Id. at 679-80.

n100 266 F.3d 64 (2d Cir. 2001).

n101 Id. at 75-77.

n102 Id.

n103 United States v. Simons, 206 F.3d 392, 401 (4th Cir. 2000).

n104 Kerr, Lifting the "Fog", supra note 5, at 814; Sergent, supra note 4, at 1199-1204.

n105 See, e.g., Kerr, Lifting the "Fog," supra note 5, at 812-16; Haglund, supra note 4, at 146-47; Sergent, supra note 4, at 1197-1204.

n106 See Kerr, Lifting the "Fog," supra note 5, at 812-16; Sergent, supra note 4, at 1197-1204.

n107 Sergent, supra note 4, at 1196-97.

25

n108 Leib, supra note 4, at 395.

n109 Id. at 395-97.

n110 Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986).

n111 18 U.S.C. § § 2510-2522 (2002).

n112 18 U.S.C. § § 2701-2711 (2002).

n113 18 U.S.C. § 2511 (2002) (emphasis added).

n114 18 U.S.C. § 2510(4) (2002). In addition, subsection (12) provides that:

"Electronic communication" means 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, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include --

(A) any wire or oral communication;

(B) any communication made through a tone-only paging device;

(C) any communication from a tracking device (as defined in section 3117 of this title); or

(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds[.]

18 U.S.C. § 2510(12) (2002).

n115 36 F.3d 457 (5th Cir. 1994).

n116 Id.

n117 Id. at 458.

n118 Id. at 461. "Wire communication" was defined as:

Any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) . . . and such term includes any electronic storage of such communication.

Id. (quoting 18 U.S.C. § 2510(1) (alteration and emphasis added by court)).

26

The statute has since been amended to provide:

(1) "wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce[.]

18 U.S.C. § 2510(1) (2002).

n119 Steve Jackson Games, 36 F.3d at 461. "Electronic communication" was 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, photoelectronic or photooptical system . . . but does not include . . . any wire or oral communication[.]'" Id. (quoting 18 U.S.C. § 2510(12) (alteration and emphasis added by court)).

n120 Steve Jackson Games, 36 F.3d at 461. "Electronic storage" was defined as "'(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]'" Id. (quoting 18 U.S.C. § 2510(17)).

n121 Steve Jackson Games, 36 F.3d at 461-62.

n122 Id. at 458.

n123 See, e.g., Wesley College v. Pitts, 974 F. Supp. 375 (D. Del. 1997); United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996); Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996). But see United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) (holding that the retrieval of a voice mail message constitutes an "interception" under the Wiretap Act rather than an "access" of a stored communication under the Stored Communications Act).

n124 236 F.3d 1035 (9th Cir. 2001).

n125 Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) (superseding the 2001 opinion).

n126 Id. at 872-73.

n127 Id. at 873.

n128 USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

n129 Konop, 302 F.3d at 877-78 (citing USA PATRIOT Act § 209, 115 Stat. at 283 (2001)).

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n130 Id. at 879.

n131 Jarrod J. White, Note, E-Mail@Work.Com: Employer Monitoring of Employee E-Mail, 48 ALA. L. REV. 1079, 1083 (1997).

n132 18 U.S.C. § 2511(2)(d) (2002). The statute provides:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Id.

n133 White, supra note 131, at 1084-85.

n134 See Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983) (holding that an employee can implicitly consent to monitoring of business calls through the acceptance of employment with knowledge of the monitoring policy but that an employee does not consent implicitly to monitoring of personal calls based upon the company's policy of monitoring solicitation calls).

n135 18 U.S.C. § 2510(5)(a) (2002). The statute provides:

"electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than --

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties[.]

Id.

n136 See infra notes 57-58 and accompanying text.

n137 Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001).

n138 See, e.g., Greenberg, supra note 4, at 239-49.

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n139 See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 887 (9th Cir. 2002). See also Hector, supra note 4, at 995-96, 1003.

n140 Hector, supra note 4, at 1003; Kerr, Lifting the "Fog", supra note 5, at 836-40; Greenberg, supra note 4, at 251-52.

n141 USA PATRIOT Act § 209 (2001).

n142 Lee, supra note 4, at 382 (citing USA PATRIOT Act § 209, 115 Stat. at 283 (2001)).

n143 Sergent, supra note 4, at 1225-26.

n144 Leib, supra note 4, at 412.

n145 Sergent, supra note 4, at 1225-26.

n146 18 U.S.C. § § 2701-2711 (2002).

n147 18 U.S.C. 2701(a) (2002). The Act provides:

Except as provided in subsection (c) of this section whoever --

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

Id.

n148 18 U.S.C. § 2520(b)(2)-(3) (2002); § 18 U.S.C. § 2707(b)(3), (c) (2002). § See also Kerr, Lifting the "Fog", supra note 5, at 817-18.

n149 Greenberg, supra note 4, at 248-49.

n150 18 U.S.C. § 2701(c) (2002). Section 2701(c) provides:

Exceptions. -- Subsection (a) of this section does not apply with respect to conduct authorized --

(1) by the person or entity providing a wire or electronic communications service;

(2) by a user of that service with respect to a communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

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Id.

n151 18 U.S.C. § 2511(2)(d) (2002).

n152 18 U.S.C. § 2701(a) (2002).

n153 § 2701(c).

n154 18 U.S.C. § 2701(c)(1) (2002). The statute states, "(c) Exceptions. -- Subsection (a) of this section does not apply with respect to conduct authorized -- (1) by the person or entity providing a wire or electronic communications service." Id.

n155 932 F. Supp. 1232 (D. Nev. 1996).

n156 Id. at 1236-37.

n157 See, e.g., Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001); Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996). But see Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); United States v. Smith, 155 F.3d 1051 (9th Cir. 1998).

n158 Greenberg, supra note 4, at 248-49; Leib, supra note 4, at 395.

n159 Greenberg, supra note 4, at 245-48.

n160 Smith, 155 F.3d at 1057-58. The Ninth Circuit Court of Appeals declined to use a narrow definition of "intercept" in deciding whether voice mail messages that had been obtained without authorization were obtained in violation of the ECPA and held that voice mail messages may be intercepted when stored on a voice mail system and not only contemporaneously with their transmission. Id. The Ninth Circuit later affirmed its holding in Konop, where it distinguished between electronic storage of electronic communications, which requires interception contemporaneously with transmission, and electronic storage of wire communications, which does not. Konop, 302 F.3d at 877-78.

n161 Leib, supra note 4, at 395; Greenberg, supra note 4, at 248-49.

n162 Lee, supra note 4, at 380 (citing USA PATRIOT Act § 209, Pub. L. No. 107-56, 2001 H.R. 3162 (2001)).

n163 See, e.g., Hector, supra note 4; Lee, supra note 4; Leib, supra note 4; Greenberg, supra note 4; Haglund, supra note 4; Sergent, supra note 4; Morris, supra note 4;

n164 Hector, supra note 4, at 1003; Kerr, Lifting the "Fog", supra note 5, at 836-40; Greenberg, supra note 4, at 251-52.

n165 Sergent, supra note 4, at 1199-1204.

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n166 See supra notes 9-10, 13, 16-17, 21-22 and accompanying text.

n167 Florentino, supra note 9, at 566-67.

n168 U.S. CONST. amend IV.

n169 18 U.S.C. § § 2511-2522 (2002).

n170 18 U.S.C. § § 2701-2711(2002).