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New ruling will make you think twice about monitoring e-mail


It’s the bedrock principle of most companies’ computer use policies: Anything an employee does on a company-issued computer can be monitored by the employer. But a recent court decision could blow that concept out of the water.

The case revolves around an employee of a healthcare company who’d been issued a company-owned laptop computer.
Before she resigned from her position, she used the laptop to communicate with her lawyer via an Internet-based, password-protected e-mail account. The e-mails concerned a lawsuit she was considering filing against her employer.

A question of privilege

After her resignation and subsequent lawsuit, the employer searched the contents of the woman’s computer, discovering the e-mails between the employee and her lawyer. When the employer brought the contents of these messages to light in court, the woman’s lawyers objected, claiming the e-mails were protected under attorney-client privilege.

The employer said they were fair game, because policy made it clear that any e-mails sent or received on company equipment became company property.

Here’s how the policy read, in part:

The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice.

E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

The principal purpose of electronic mail (e-mail) is for company business communications.
Occasional personal use is permitted.

Five innocuous words

Bet you picked out the phrase that sunk the employer: Occasional personal use is permitted.
The judge jumped on that loophole, saying it gave the employee reason to think that e-mail sent through personal, password-protected accounts would be regarded differently than business-related communications. The court ruled the disputed e-mails were privileged.

So what’s the lesson here? First, the decision comes out of the New Jersey Appellate Court, so it’s only legally binding in that state. But there’s a strong possibility that other courts might agree with the judge’s reasoning in this case.

Many companies, bowing to the realities of today’s workplace, have clauses in their computer usage policies allowing employees to occasionally use company computers for personal activities. But if the reasoning behind this ruling becomes widely accepted, that might have to change.

So it looks like future policies will either have to prohibit personal use or make it crystal-clear that employees have no right to privacy in anything they do on company computers. Either way, enforcing the policy is likely to be a giant headache.


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