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Coping With the Legal Perils of Employee
Email
The consent exception to the ECPA
If employees have received full notice that email monitoring
may take place and have clearly and unambiguously consented to
that monitoring, the employer's hand is strengthened considerably,
providing the employer limits its monitoring to business-related
email (in terms of email, an interesting problem in and of itself).34 At minimum, this consent should
be either explicit or very clearly inferable from the conduct
of the parties.35 While Congress
intended that the ECPA consent requirement be construed broadly,36 courts examine a claim of consent
very carefully. According to the U.S. Court of Appeals for the
First Circuit:
"[Under the ECPA] consent inheres where a person's behavior
manifests acquiescence or a comparable voluntary diminution of
his or her otherwise protected rights. Of course, implied consent
is not constructive consent. Rather, implied consent is 'consent
in fact' which is inferred 'from surrounding circumstances indicating
that the [party] knowingly agreed to the surveillance.' Thus,
implied consent - or the absence of it - may be deduced from
'the circumstances prevailing' in a given situation. The circumstances
relevant to an implication of consent will vary from case to
case, but the compendium will ordinarily include language or
acts that tend to prove (or disprove) that a party knows of,
or assents to, encroachments on the routine expectation that
conversations are private. And the ultimate determination must
proceed in light of the prophylactic purpose of [the ECPA] -
a purpose that suggests that consent should not casually be inferred."37
 Incidentally,
some commentators have suggested that an employer could argue
it has the right to monitor email on the grounds that the employer
is the provider of email service to its employees. While there
is such an exception under both state38
and federal law,39 it seems clear
that this exception is intended to permit the technical administration
of an email system and not the monitoring of the content of the
email transmitted over that system.
Implementing a monitoring policy
The best, and perhaps the only, solution lies in establishing
a monitoring plan based upon a carefully conceived email policy
that is disseminated to all employees and agreed to by all employees.
Several commentators have attempted to delineate the contents
of such a policy.40 Attorneys Dichter
and Burkhardt have constructed a thoughtful outline of what such
a policy should contain, and how it should be worded.41
Whatever policy is decided upon, a physical copy should be given
to all employees (not emailed to them42),
and posted with other official legal notices to employees. Further,
employees should be required to acknowledge, by their signature,
receipt of and agreement with that policy.43
Several suggested policies directed toward employee use of email
and the Internet are posted on the Web and on Westlaw.44
However, the most complete and well-developed policy model the
authors have found is the one crafted by attorneys Dichter and
Burkhardt, which appears near the end of their online article
entitled Electronic
Interaction in the Workplace: Monitoring, Retrieving, and Storing
Employee Communications.45
A small portion of their suggested policy on email and Internet
procedure appears as a sidebar to this article.
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Michael McChrystal, top, Marquette 1975, is
a professor of law at the Marquette University Law School.
William Gleisner, middle, Marquette 1974,
both a practicing attorney and computer consultant, maintains
a law firm-based litigation support service bureau in Milwaukee.
Michael Kuborn, bottom, Marquette 1998, is
with Olsen, Kloet, Gundersen & Conway, and is trained in
computer recovery and computer search and seizure techniques.
Products and services mentioned in this article should not be
construed as an endorsement.
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If an employer decides to implement such a monitoring
policy, several other factors become important. First, as a practical
matter, how does one actually monitor email or Internet use by
employees? In the information age, it should come as no surprise
that several companies are actively involved in developing software
that will facilitate such employer monitoring of employee email
usage.46 The Equitrac Corporation,
for example, introduced a new type of software at the beginning
of 1997 that may assist an employer in monitoring employee email
traffic and Internet usage. According to Equitrac:
"Companies looking for a way to track Internet usage for
billing and project management purposes should evaluate Equitrac
Corporation's E.P.I.C. - Equitrac's Professional Internet Client
- Internet client/server software tool. E.P.I.C. is a tracking,
monitoring, and blocking Internet access tool enabling lawyers
and other service professionals to track time spent online, monitor
online research, and track email sent and received."47
Email is rapidly becoming a vehicle for intra-office communication
that is as important, if not more important, than "snail"
mail and hardcopy memoranda. Companies should begin to think
seriously about retention and destruction policies regarding
email, because email increasingly will become the subject of
discovery. Indeed, there already have been cases involving discovery
requests to inspect a company's computer hard drives for email,48 and one only need consider the Microsoft
antitrust litigation to recognize how devastating email can be
even to a computer literate litigant.49
In developing those email policies, however, remember that simply
deleting office email from a hard drive may not result in its
actual destruction.50
Conclusion
Nowhere are the legal challenges of the information age more
clearly apparent than in the area of email communication. Inevitably,
both lawyers and clients need to consider carefully how they
are going to deal with both the benefits and the unavoidable
risks presented by the growing use of email.
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