Court rules against employer reading an employee's personal email

[jur1st]

Re: Court rules against employer reading an employee's personal email

I haven't had a chance to read the full opinion yet (all the links except the news coverage are broken), but Prez makes an excellent point that this simply clarifies whether or not the attorney client privilege still applies if the communication happens through a channel operated and monitored by an employer. Depending on how narrowly the issue was construed by the court, this could have little to no impact on general communication.

No matter how you look at it, it is becoming more clear that each individual must create their own expectation of privacy through careful selection of networks for communication and other technologies such as encryption.

I actually came by to post a link to an interesting (albeit disturbing) article about the oral arguments in City of Ontario v. Quon.. As someone who has been quoted out of context by journalists before, I hope that Justice Roberts was asking the difference between a pager and email so that they could further refine their ruling. A more full examination of the record will be helpful.

As these opinions continue to filter through the court system over the next few months and years, always try and avoid reading third party accounts. Many opinions are thick enough to cause those of us with law degrees problems deciphering the actual holding.

[bascule]

Re: Court rules against employer reading an employee's personal email

After further reading, one of the caveats in this particular case was that the email was with a lawyer, and that the Court was protecting the attorney-client privilege. Not surprisingly, the headlines have glossed over this fact. So it's unclear to me if this would apply to otherwise normal personal emails. I suspect that it may not.

Attorney/client privilege applies even when their method of communication is fundamentally insecure. WTF?

If you and your lawyer were to stand on top of two buildings separated by a crowded street, and communicate with each other using megaphones, would you expect attorney/client privilege to be enforced?

[streaker69]

Re: Court rules against employer reading an employee's personal email

Attorney/client privilege applies even when their method of communication is fundamentally insecure. WTF?

If you and your lawyer were to stand on top of two buildings separated by a crowded street, and communicate with each other using megaphones, would you expect attorney/client privilege to be enforced?

I think it's more or less based upon the expectation of privacy. A reasonable person could not expect that form of communication in your example to be private, but a reasonable person could expect their email communication through a third party email service to be private.

I could be wrong, but I believe that's the basis of the decision. You have to realize that those of us that work in IT and understand the technology are "unreasonable people".

[Thorn]

Re: Court rules against employer reading an employee's personal email

Attorney/client privilege applies even when their method of communication is fundamentally insecure. WTF?

If you and your lawyer were to stand on top of two buildings separated by a crowded street, and communicate with each other using megaphones, would you expect attorney/client privilege to be enforced?

I think it's more or less based upon the expectation of privacy. A reasonable person could not expect that form of communication in your example to be private, but a reasonable person could expect their email communication through a third party email service to be private.

I could be wrong, but I believe that's the basis of the decision. You have to realize that those of us that work in IT and understand the technology are "unreasonable people".

Streaker has hit on a key point. We know it's insecure, but Joe Sixpack doesn't understand that is like shouting over megaphones over a crowded street, and has an expectation that it's private. What's worse is the courts don't understand that these communications are inherently open.

[SHA-hi]

Re: Court rules against employer reading an employee's personal email

Attorney/client privilege applies even when their method of communication is fundamentally insecure. WTF?

If you and your lawyer were to stand on top of two buildings separated by a crowded street, and communicate with each other using megaphones, would you expect attorney/client privilege to be enforced?

You should teach a course on analogies for computer professionals. If this was said, I highly doubt things would have ended up this way.

[streaker69]

Re: Court rules against employer reading an employee's personal email

Streaker has hit on a key point. We know it's insecure, but Joe Sixpack doesn't understand that is like shouting over megaphones over a crowded street, and has an expectation that it's private. What's worse is the courts don't understand that these communications are inherently open.

I just had another thought about Bascule's analogy.

If you were to actually shout from megaphones across a street in an average city, chances are you'd be ignored by 99% of the people on the street below. But there would be that 1% that would look up and listen.

This kind of holds true for what happens on the inturtubes as well. Most of the people ignore the traffic that's passing through, but there is a small percentage that are intercepting the traffic.

[Thorn]

Re: Court rules against employer reading an employee's personal email

Most of the people ignore the traffic that's passing through, but there is a small percentage that are intercepting the traffic.

And taking notes...

[YenTheFirst]

Re: Court rules against employer reading an employee's personal email

If this person had spoken to their attorney through their employer's telephone network, instead of their internet, would this discussion be at all different?

A telephone system can be eavesdropped on, trivially, but people still expect privacy in their conversations, even when they make no effort to ensure that privacy.

[theprez98]

Re: Court rules against employer reading an employee's personal email

Attorney/client privilege applies even when their method of communication is fundamentally insecure. WTF?

If you and your lawyer were to stand on top of two buildings separated by a crowded street, and communicate with each other using megaphones, would you expect attorney/client privilege to be enforced?

No. It's the expectation of privacy of the individual, not the actual reality of the situation. The court concluded that she did have such an expectation.

[SHA-hi]

Re: Court rules against employer reading an employee's personal email

If this person had spoken to their attorney through their employer's telephone network, instead of their internet, would this discussion be at all different?

A telephone system can be eavesdropped on, trivially, but people still expect privacy in their conversations, even when they make no effort to ensure that privacy.

Yes, it's not your phone, it's not your network. You talking to your cousin in Trinidad for five hours a day impacts the service of the system, you aren't doing your job at work, and if you're doing it, others will think its OK also and start doing it.

I don't know where people came up with this notion that their employer's property is theirs because it's electronic.

[theprez98]

Re: Court rules against employer reading an employee's personal email

Yes, it's not your phone, it's not your network. You talking to your cousin in Trinidad for five hours a day impacts the service of the system, you aren't doing your job at work, and if you're doing it, others will think its OK also and start doing it.

I don't know where people came up with this notion that their employer's property is theirs because it's electronic.

Your point is well-taken, but in this specific case, the user agreement specifically allowed for employees to do "private" non-work business on the employer network. So while in a legal sense it remains the employer network, it gives the users some expectation of privacy; and it doesn't matter if it's a real expectation; it's what the user perceives.

[SHA-hi]

Re: Court rules against employer reading an employee's personal email

Your point is well-taken, but in this specific case, the user agreement specifically allowed for employees to do "private" non-work business on the employer network. So while in a legal sense it remains the employer network, it gives the users some expectation of privacy; and it doesn't matter if it's a real expectation; it's what the user perceives.

I love the smell of companies passing through the NOLAN stages when it's trial-by-fire.