San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

“You have no right to privacy in your e-mail using corporate resources”
“The Company reserves the right to monitor your Internet access at any time”
So chimes policy after policy after policy. But, is the mantra really true?

Several recent cases suggest that answer is “not always.” In United States v. Long, the highest military court (not exactly a known bastion of privacy protection), recently held that a Marine Corps investigator violated a soldier’s privacy rights by obtaining inculpatory e-mail from the system administrator. The Department of Defense had an e-mail policy that was as draconian as any private employer’s, but the policy said nothing about turning over e-mail to criminal investigators, and the system administrator admitted that he did not read individual e-mails when monitoring the system because he felt they were private. Sound familiar?

At the start of 2007, the Ninth Circuit Court of Appeals in United States v. Ziegler held that an employee caught viewing child porn on his work computer had a reasonable expectation of privacy in the computer because it was stationed in his locked office. The court stated more generally, “in the private employer context, employees retain at least some expectation of privacy in their office,” which, for most employees in today’s working world includes a computer with stored e-mail.

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For years now, employers have been warned that a detailed, electronic resources policy is the best defense against vicarious liability for the actions of employees who use corporate e-mail or Internet access like a bully in a sandbox. A recent decision from the California Court of Appeals highlights a potentially more potent defense that has received little attention in employment law circles.

The Communications Decency Act of 1996, 47 U.S.C. §230 [CDA] immunizes any “provider . . . of an interactive computer service” from liability under any state law for information published on the service by someone else. In Delfino v. Agilent Technologies, the plaintiffs sued Agilent for intentional infliction of emotional distress because a former Agilent employees had used Agilent’s e-mail system and Internet access to communicate numerous threatening messages to the plaintiffs. The California Court of Appeals affirmed summary judgment for Agilent based on the CDA.

As a matter of first impression, the court held that a corporate employer, like Agilent, who offers e-mail and Internet access is an interactive computer service provider for purposes of the Act. Because the employee, not Agilent, provided the threatening messages, and the plaintiffs sought relief only under state tort law, the CDA immunized Agilent from liability. By analogy, the CDA can be used to get rid of those pesky state law claims, like negligent hiring, negligent supervision, intentional infliction of emotional distress, and defamation, that tend to accompany Title VII claims alleging harassment through an employee’s use of corporate electronic resources.

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