NO PRIVACY FOR EMAIL January 20, 2011

Can your employer read your emails sent from work or check your web history? The next time you send an email from work; consider whether it is as private as you hope it will be. Consider your employers policies relating to email and web usage. Most employers have policies dictating what you can and cannot use your work computer and internet access for. A typical policy states that you may not access personal email, gaming sites, pornography, and some social network sites from work. Some employers block access to non-work email account sites such as gmail, hotmail, or yahoo.

If you are using your employers computer, internet access, or smart phone, your employer has the right to monitor what you are using their equipment for. If your employer can look at your web history to determine whether you are doing personal tasks while at work, you cannot expect privacy. A California Appeals court has ruled that an employee has no expectation of privacy while at work, even when sending his lawyer an email.

This person did not get to protect the email under Attorney Client privilege, because as the California court decided, the employer's policy blocked access to non-work email accounts, gave notice that emails were subject to monitoring, and therefore there was no expectation of privacy. The court compared the use of work email to having a loud conversation with their lawyer from the company conference room with the door open while everyone at work could hear. No one would expect that type of conversation to be private.

Not all courts agree with California. Last year a New Jersey court protected emails sent from a work email to an attorney under the Attorney Client Confidentiality Privilege. The Court in that case said that the emails included the warning that the email contained confidential information and that the email was not what the employer was seeking to block with their policy.

This is a subject that is sure to receive more attention as the laws catch up with technology. So what should you do? Send sensitive emails or make sensitive phone calls from home or during your personal time such as breaks or lunch hours. Or use your personal smart phone and send the message when you have privacy. Be prepared for the changes and check with your employer to see what the policies are that effect you.