Does an employer have email privacy rights from searches by
subordinates with their home computers over a WAN? I am the president
of a corp. and a VP downloaded my email files using his home computer.
There were some emails regarding his performance that I wrote to my
consults. He also downloaded my personal email to my wife.

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Request for Question Clarification by omniscientbeing-ga on 06 Oct 2003 19:01 PDT

dinosaurdave-ga,

How is it that you know for certain which individual downloaded your
e-mail files?

Also, are you saying that this individual accessed your work e-mail
from his/her home? And finally, what exactly do you mean by
"searches"?

omniscientbeing-ga
Google Answers Researcher

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Request for Question Clarification by pafalafa-ga on 06 Oct 2003 19:36 PDT

Dinosaurdave,

You've asked a question about a very complex topic (as I'm sure you're
aware) but it's not an impossible one.  However, it would help to have
a bit more clarity on what you're asking about:

--as a rule of thumb, in the US, business email has been treated as
business property (i.e. belonging to the corporation, not to a
particular individual) with only very limited privacy rights.

--the exception here would be if there is an explicit company policy
acknowledging that emails are private, or (possibly) if there is a
general practice in the workplace of using email for obviously private
correspondence.

--but even if emails are not "private", it's still perfectly
legitimate corporate policy for some communications to be
confidential, "eyes only", or otherwise off-limits from others. 
Violation of this policy wouldn't necessarily be grounds for legal
action (although in some circumstances it could be), but could
certainly be grounds for disciplinary action within the company.

Bottom line...a great deal boils down to the particulars in each
company, and in each case.  And even when the particulars are
well-known, the actual status of the emails may still be unclear.

If you can give as a bit more information, we can perhaps offer some
guidance.  It seems unlikely that anyone will be able to provide a
definitive answer, but perhaps the other researchers have insights on
this issue I haven't yet considered.

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Clarification of Question by dinosaurdave-ga on 06 Oct 2003 20:38 PDT

As a result of an arbitration hearing pertaining to the termination of
the VP,it was clear that he read my email files. First, on the record,
he admitted to doing it. Second, his attorney produced copies of
emails that he printed from his personel computer. I know that he
downloaded my entire MS Outlook file(s) to his home machine. Some of
this material was privatge communications I had with outside
consultants regarding his poor performance. He was subsequently
terminated for cause. He then sued the company for his unpaid
compensation. The case went to arbitration and depositions have been
taken. That is how I found out that he tunneled in to my office
machine from his home computer after he left and before we were able
to cut off his access.

The big issue is whether subordinates have the right of access to the
files of a superior with any degree of protection. What are my 4 th
amendment rights?

Hi, 

The issue you have is not as much a civil rights issue (though it is
definitely that) but a criminal charge issue. Cracking into your
computer, no matter how easy that was for a VP of your company to do,
is still against the law, and a matter for the FBI to investigate. If
he has your email file from Outlook on his home computer, then he is
in breach of that law. How it got there, or by what means is not
really the issue. He has it, it is not his, and it is company
property.

Email is company property, and not personal property, if it is coming
through or sent by your company email server using your company domain
name. It is as good as Company Letter head, which is why several
companies put disclaimers and headers on all out going mail, noting
that the email is from an employee and is not perhaps the view of the
Company itself. If you write to Bic for instance and have one of their
support people send you a note back  you can see one of these
disclaimers.

Taking your company email is just as damaging, by law, as taking your
company records. It opens this VP up to both Criminal and Civil
charges. The DMCA protects all copyright material in electronic form.
If any of those emails discussed company policy changes or marketing
managment or company related technology, then the DMCA protects these
emails as well.

What this VP has done is very serious. My first call would be to the
FBI, and just tell them straight out that he is in position of your
email files and you want to press charges. My next call would be to my
lawyer, asking him to look into the DMCA aspects of this. If he blew
it off, I would take it that he was not up on the clauses of the DMCA
and find a lawyer who was. (This would not be a slight against the
lawyer, the DMCA is still not well known, though there have been
several very large cases involving this document).

Links of interest

DMCA 
http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:

Internet Law Journal
http://tilj.com/content/ecomarticle11140001.htm

PSI Tech Press Release
http://www.psitech.net/news/100900.htm



thanks, 

webadept-ga

good reference material

dinosaurdave-ga,

I'd have to say that offhand, no one has a right to access anyone
else's e-mail without permission, no matter who they are (with the
possible exception of system administrators under certain
circumstances), although I'll have to research the specifics as they
pertain to the 4th amendment. The only possible excuse your employee
may have would be it was part of his job to check your e-mail, or if
it could possibly be construed as such. Was it ever part of his job
description to check your e-mail for you? Also, did your IT department
grant him access to company computers remotely (i.e. via VPN), or did
he do this completely on his own?

omniscientbeing-ga
Google Answers Researcher

Omniscientbeing-ga

The VP did not have permission to read the email by virtue of either
his employment agreement or company policy. He did work from home from
time to time via a VPN. He was not the Sysadmin, but he was paranoid.
The company is small and there is no specific policy regarding email
privacy.

I don't see this as, in any way, a "civil rights issue", and no
"fourth amendment" issue, as there was no state action. All persons
involved appear to be private citizens.
://www.google.com/search?q=define%3Acivil+rights

In terms of whether the VP was within his rights to download the
email, that would depend upon company policies - and I infer from the
question that there really weren't any policies on the issue.
Obviously, the VP had access to the files that he downloaded. Absent a
policy, and absent evidence that he used somebody else's password to
access the files, it may be difficult to argue that he didn't have at
least implied authority to access them.

Once litigation started, it seems that the VP could have obtained the
emails through the discovery process even had he not previously
downloaded them. That is, he would submit a "request for production"
of the emails, and you would have a certain amount of time to respond
to the request. It is not clear that he ended up in a different
position than he would have been in had he followed that route instead
of downloading them. That raises some question as to what your damages
would be, even if you could establish that a civil tort of some sort
occurred.

I don't see how the DMCA would apply to your situation.