And justice for all
Despite its fast growth, the industry faces some gray areas, particularly regarding the legal nuances surrounding privacy of communications.
Courts have generally found that employers have the right to monitor equipment that they own on their premises, including telephones and computer systems. Nevertheless, laws surrounding the monitoring of employees' electronic communications are not as cut-and-dried as they appear, legal experts say.
"The federal Wiretap Act says it's unlawful to intercept electronic communications like email and IM. The law, on the face of it, looks like it's illegal. But the courts have ruled that viewing stored email is not considered a violation of the wiretap laws," said attorney Philip Gordon, chairman of the privacy practice group for law firm Littler Mendelson.
In one US Court of Appeals case, the court further detailed how it is only considered a violation of the Wiretap Act if an email is intercepted while it is travelling through the network pipe and is between two points. If, as in this particular case, an email is simultaneously copied before it reaches its destination, that email is considered "stored" during the copying process.
Meanwhile, the Stored Communications Act prohibits unauthorised access to stored communication, such as email or IM, residing in servers. But the law allows Internet service providers or employers to access information that is on their network servers, because they are considered the system administrator.
However, if an employee has a personal email account, through AOL or Yahoo, for example, and uses his or her company computer to access it, the employer cannot use the employee's computer and password to gain access.
"This happens more frequently than anyone is aware of," Gordon said.
Privacy and legal experts advise companies to set aside time and formulate policies regarding email, instant messaging and downloads. They note that it's better to take preventative measures to halt the problem before it happens, rather than deal with matters after the fact, such as seeing confidential information released.
"Employers should tell employees what they're doing," said John Soma, a law professor and executive director of the Privacy Foundation. "They need to provide meaningful information as to why they have a monitoring policy and ask the employee for actual consent."
