Monitoring E-Mail

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If an employer makes clear to employees that it is monitoring them, they generally do not have a reasonable expectation of privacy and the employer is free to monitor.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 defined the guidelines for intercepting wire and oral communication. Unless the employer is monitoring the phone call for quality control (i.e., technical support for customers), the employer may monitor work calls without notice.  However if the employer learns that the phone call is about a personal matter, the employer must not continue to monitor the call upon learning that a personal matter is being discussed.

The Electronic Communications Privacy Act of 1986 amended Title III to include electronic communications.   See Pub. L. No. 99-508, 100 Stat. 1848 (codified in sections of 18 U.S.C. including Sec. 2510-21, 2701-10, 3121-26).    More importantly, intercepting these communications (e.g., email messages) can be based on suspected violations of any Federal felony.  See 18 U.S.C Sec. 2516(3).

Employers that provide employees with a privacy policy that clearly discusses what regular monitoring to expect are less likely to be found in violation of ECPA.  Generally, if the employee has no expectation of privacy, then an invasion of this "non-privacy" violates neither ECPA, nor California Penal Code Section 632.  But if an employee learns that an employer has monitored her phone calls, e-mail, or other communications and the company has no written policy regarding such monitoring, it may be possible for the employee to recover damages and attorneys fees.


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