Privacy With Work Emails? Lower Your Expectations

Privacy With Work Emails? Lower Your Expectations

Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted

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by the New Jersey Supreme Court and decision pending).

The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”

In finding that Aguiar had no reasonable expectation of privacy, the court adopted the four factors used In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (S.D.N.Y. 2005) to determine whether an employee has an expectation of privacy in emails generated at the workplace. The factors consider whether:

(1) the company maintains a policy banning personal or other objectionable use, (2) the company monitors the use of the employee’s computer or email, (3) third parties have a right of access to the computer or emails, and (4) the company notifies its employees, or was the employee aware, of the company’s use and monitoring policies.

Id.

Here, these factors were easily satisfied by the employer’s generic information technology policy stated in its employee handbook that it sufficiently promulgated. As long as an employer adheres to its own established policy, its employees have no expectation of privacy in emails transmitted through the employer’s server. The court noted that “sending a message over [an] e-mail system was like placing a copy of that message in the company files.” Id. The court may have gone farther than its holding citing Black v. State, which found attorney-client privilege inapplicable for a telephone call when the party was warned that telephone conversations were monitored and taped. 920 So.2d 668 (Fla. 5th DCA 2006). Thus, it is reasonable to infer that any communication made at work that is monitored or recorded could lose privacy protection if the employee was aware of the company’s monitoring and recording policies.

Generally, the court holds that there is no expectation of privacy in emails sent from work under these circumstances; thus, an employee waives the attorney-client privilege for communications sent through an employer’s server. To protect the attorney-client privilege, it is the responsibility of the attorney and the client to be vigilant and aware of the medium of the communication, and ensure that third parties do not have access to one’s confidential information.

Comments (4):

  1. “Thus, it is reasonable to infer that any communication made at work that is monitored or recorded could lose privacy protection if the employee was aware of the company’s monitoring and recording policies.

    Generally, the court holds that there is no expectation of privacy in emails sent from work under these circumstances”

    The ‘at work’ and ‘from work’ poses further questions and suggests a somewhat outmoded understanding of work these days – what happens when I send an email on Sunday (non work day) from my home on the iPhone that the company provides me with?

    What will happen if the email provider is Google Apps – who will Google side with – individual or company?

  2. I always thought “workplace privacy” was a big, fat oxymoron.

    I think your suggestion that “[t]o protect the attorney-client privilege, it is the responsibility of the attorney . . . to be vigilant and aware of the medium of the communication” says it all. Dear Client: Do *not* e-mail me from work! Dear Client: Do not e-mail me using any device that your employer provided to you. (Maybe that satisfies uk visa law’s concerns, above?)

  3. I think the four factors that the court adopts will probably be easy to meet in most circumstances. By 2010, it is likely that most companies have policies and procedures in place regarding e-mail use the in the workplace. Either way, there will always be employees using work computers for personal use, and privacy issues will remain a debatable subject.

  4. In the words of former New York Governor Eliot Spitzer, “Never write when you can talk. Never talk when you can nod. And never put anything in an e-mail.”

    Of course, in reality, emails are a real part of life, including work life. It’s clearly a healthy habit to question every email you send– especially when you’re using your company’s server. Welcome to the 21st century!

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