Coping With the Legal Perils of Employee Email

Endnotes

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¹An article in USA Today reports:

"Email has become so popular that many managers are using it more than the telephone for business communication. More than 35% of 400 managers polled say they use email the most of any communications tool, based on an April survey by the American Management Association and Ernst & Young. That beats the 26% who use the phone most frequently and 15% who rely on face-to-face meetings."

² R. Timothy Muth, Security on the Internet, 70 Wis. Law. 17 (Oct. 1997).

³This article is not concerned with possible viruses, spam email, or other similar potential dangers commonly associated with Internet browsing and email communication.

⁴ Senate Report No. 99-541, which is the chief legislative source of the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. § 2510, et seq., defines email, or "electronic mail," in terms that could apply to both internal company or Internet email:

"Electronic mail is a form of communication by which private correspondence is transmitted over public and private telephone lines. In its most common form, messages are typed into a computer terminal, and then transmitted over telephone lines to a recipient computer operated by an electronic mail company. If the intended addressee subscribes to the service, the message is stored by the company's computer 'mail box' until the subscriber calls the company to retrieve its mail, which is then routed over the telephone system to the recipient's computer. If the addressee is not a subscriber to the service, the electronic mail company can put the message onto paper and then deposit it in the normal postal system. Electronic mail systems may be available for public use or may be proprietary, such as systems operated by private companies for internal correspondence."

From Westlaw Online version of S. Rep. 99-541, p. 16-17.

⁵This article is located online. Attorneys Dichter and Burkhardt are with the Philadelphia office of Morgan, Lewis & Bockius LLP. Their scholarly article is recommended to anyone interested in the topic of this article.

⁶ PBS Online

⁷ International Communications Headcount.com

⁸ "Unleash E-Commerce Now", an article from Wired Magazine. See also ZD-Net E-Business Homepage.

⁹Harley v. McCoach, 928 F. Supp. 533 (E.D. Pa. 1996); Strauss v. Microsoft Corp., 814 F. Supp. 1186, 1193-94 (S.D. N.Y. 1993).

¹⁰ Harley, 928 F. Supp. at 540.

¹¹ It appears that negligence and not strict liability continues to be the standard for determining whether an employer is liable for creating a hostile work environment, at least in the Seventh Circuit. According to an en banc determination of the court in Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997), "All the judges with the exception of Judges Easterbrook, Rovner, and Wood believe that negligence is the only proper standard of employer liability in cases of hostile-environment sexual harassment even if as here the harasser was a supervisor rather than a coworker of the plaintiff." Id. at 494.

¹²Noble v. Monsanto Corp., 973 F. Supp. 849, 858 (S.D. Iowa 1997). See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2292-93 (1998), wherein the U.S. Supreme Court stated:

"In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries Inc. v. Ellerth, ante, ___ U.S. at ___, 118 S. Ct. at ___, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. See Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense."

¹³Paine Webber Jackson and Curtis Inc. v. Winters, 579 A.2d 545, 548 (Conn. App. 1990).

¹⁴ While the law is unsettled and still in a state of flux, the existence of a Web page can be sufficient to subject a company to the jurisdiction of a foreign tribunal. Heroes Inc. v. Heroes Found, 958 F. Supp. 1, *4 (D.D.C 1996); cf. Inset Sys. Inc. v. Instruction Set Inc., 937 F. Supp. 161, 164 (D. Conn. 1996). Where a company responded to "hits" from out-of-state visitors to its Web page by sending out email across state lines, at least one court found that the Web page and email responses were sufficient to confer jurisdiction over that foreign company. Maritz v. CyberGold Inc., 947 F. Supp. 1328, 1333 (E.D. Mo. 1996) ("CyberGold automatically and indiscriminately responds to each and every Internet user who accesses its Web site. Through its Web site, CyberGold has consciously decided to transmit advertising information to all Internet users, knowing that such information will be transmitted globally.").

¹⁵ Castano v. American Tobacco Co., 896 F. Supp. 590 (E.D. La. 1995).

¹⁶ Consider the following description of the new Microsoft Office 2000:

"With Office 2000, you can save Office documents in HTML file format and retain the fidelity of your native Office file format. By saving as HTML, you ensure that anyone with a Web browser can view your documents. Office 2000 also simplifies publishing your Office documents to your intranet or to an Internet site. New File Open and File Save dialog boxes make saving documents to a Web server as easy as saving them to your hard disk or to a file server."

Quoted from Microsoft Office 2000 WWW site.

¹⁷ See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 453 (1974); United States v. Jacobsen, 466 U.S. 109, 113 (1984).

¹⁸See, e.g., Wis. Stat. § 895.50.

¹⁹ Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510, et seq.

²⁰ There are other reasons why an employer needs to be cautious about how it treats employee email. For example, the NLRB recently ruled that employee email could be found to be a protected activity. 14 Comp. Law. 22 (September 1997).

²¹ K-Mart Corp v. Trotti, 677 S.W.2d 632, 634-35, 640-41 (Tex. Ct. App. 1984) (where an employer was found liable for $100,000 for conducting a search of an employee's locker on a suspicion of wrongdoing); cf. Doe v. Kohn, Nast & Graf, 862 F. Supp. 1310, 1326 (E.D. Pa. 1994) (involving the searching of an attorney's desk by his partner).

²² K-Mart, at 638.

²³Saldana v. Kelsey-Hayes Co., 443 N.W.2d 382, 384 (Mich. App. 1989); Simmons v. Southwestern Bell Tel., 452 F. Supp. 392, 394 (W.D. Okla. 1978). Even public employers can monitor employees or search their workspaces if there is a legitimate business reason for such searches, although the Fourth Amendment obviously increases the extent of an employee's right to privacy. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 719-20 (1987).

²⁴ Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996) (Despite the fact that an employer assured employees that email communication would be private [Id. at 98], the employer escaped liability because the employee who was terminated after the company searched for and found offensive email was an at will employee.). Id. at 101.

²⁵ Regardless of privacy issues, it would seem that an employer will be protected if the employer attempts to block employee access to pornographic, violent, harassing, or otherwise objectionable Web sites or third-party email sent into a company, under the Good Samaritan exception to the Telecommunications Act of 1996, 47 U.S.C. § 230, which provides in pertinent part:

"No provider or user of an interactive computer service shall be held liable on account of -
"(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
"(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)."

²⁶ 18 U.S.C. § 2510 (5). While it could be argued that the quoted definition does not reach email, it is clear from the legislative history underlying this Act that it was intended to reach email. See, e.g., the quoted language from Senate Report No. 99-541, reproduced supra at footnote 4.

²⁷18 U.S.C. §§ 2510-2522; 2701-2711, 3121-3127.

²⁸18 U.S.C. §§ 2511, 2520.

²⁹Cf. Sanders v. Robert Bosch Corp., 38 F.3d 736, 741 (4th Cir. 1994).

³⁰Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983) ("[T]he general rule seems to be that if the intercepted call was a business call, then Berry Co.'s monitoring of it was in the ordinary course of business." Id. at 582).

³¹ Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992).

³² James v. Newspaper Agency Corp., 591 F.2d 579, 581 (10th Cir. 1979).

³³ In addition to the ECPA, consider the terms of Wis. Stat. section 968.31, which proscribes the interception of wire and electronic communication, that contains exceptions similar to those found in the ECPA. According to section 968.31 (2):

"(2) It is not unlawful under §§ 968.28 to 968.37:
"(a) For an operator of a switchboard, or an officer, employee or agent of any provider of a 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 or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, except that a provider of a wire or electronic communication service shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

"(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception."

³⁴ Cf. Watkins v. L.M. Berry & Co., 704 F.2d at 583.

³⁵Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992) ("[c]onsent under [the ECPA] is not to be cavalierly implied.... [K]nowledge of the capability of monitoring alone cannot be considered implied consent.").

³⁶Griggs-Ryan v. Connelly, 904 F.2d 112, 116 (1st Cir. 1990); United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987).

³⁷Griggs-Ryan v. Connelly, 904 F.2d at 116-17.

³⁸ See Wis. Stat.§ 968.31 (2), supra.

³⁹ Cf. United States v. Mullins, 992 F.2d 1472, 1478.

⁴⁰See, e.g., Brown, Developing Internet, Intranet and Email Policies, 520 PLI/Pat 347 (July 1998); Ballon, The Emerging Law of the Internet, 507 PLI/Pat 1163, 1270-73 (Feb. 1998); Ciapciak and Matuszak, "Employer Rights in Monitoring Employee Email," For the Defense (Nov. 1998).

According to Ballon, Alternate Corporate Responses to Internet Data Theft, 471 PLI/Pat 737, 750-751:

"Companies should adopt and enforce email and Internet use policies. Companies should adopt Internet policies [in order] (i) To negate any expectation of privacy employees might otherwise have. (ii) To limit liability under the Telecommunications Act of 1996. By taking affirmative action to monitor email transmissions for offensive conduct, a company may be able to avoid indirect liability for third party violations of state law (such as sexual harassment and defamation) under the Good Samaritan exemption created by the Telecommunications Act of 1996. [A]n Email Policy [should specify that] (i) The company owns the computer system and all data stored on or transmitted over company networks. (ii) The employee has no right to privacy in any information stored on the system. The employer reserves the right (but does not assume the obligation) to monitor employee email. (iii) Define categories of email that should be retained in the ordinary course of business and specific procedures for retaining such communications. (iv) Purge all other email messages at regular intervals."

⁴¹ This article is located online. Supra.

⁴²See In re Prudential Ins. Co. Sales Practices Litigation, 169 FRD 598 (D. N.J. 1997), where the court found that distribution by email was an ineffective method of distributing a company policy. Id. at 603-04.

⁴³ Id.

⁴⁴ See supra note 40.

⁴⁵ This article is located online.

⁴⁶ Companies such as Equitrac and Sequel Technology. See

⁴⁷ From the Equitrac Web page

⁴⁸ See, e.g., Fennel v. First Step Designs Ltd., 83 F.3d 526 (1st Cir. 1996), involving a request to examine an employer's hard drive for the purposes of learning whether a particular email memorandum had been predated to avoid liability. Id. at 532-33.

⁴⁹ See Law Journal Extra: United States v. Microsoft, specifically a Nov. 3, 1998, story, wherein it is reported, "Gates seemed most argumentative on the [video] tape [of his deposition by Government lawyers] when questioned about a June 23, 1996, [email] memo he wrote to Paul Maritz and Brad Silverberg, two top Microsoft executives. The email describes a meeting Gates had two days prior with Apple executives."

⁵⁰ See McChrystal, Gleisner, and Kuborn, Document Destruction and Confidentiality, 71 Wis. Law. 25 (Aug. 1998).