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E-Mail Law Expands
National Law Journal - July 19, 1999

Electronic mail is either the greatest thing since sliced bread or the curse of productivity managers everywhere. Love it or loathe it, e-mail is so ubiquitous that the body of case law involving e-mail has grown to substantial proportions.

Many e-mail legal issues overlap with employment questions, especially in the privacy and harassment areas. As e-mail case law develops, it can be expected that any aspect of communication or speech crimes--such as price-fixing, extortion or conspiracy--will be touched by e-mail.

Privacy: Lots of Precedent, But Hotly Litigated

The best-settled area involves workplace privacy, though even that is still being hotly litigated. Courts for several years and in many jurisdictions have found that there is no reasonable expectation of privacy in e-mail sent, stored or received at work. The computer equipment belongs to the employer, and so does everything on it.

This was clearly stated in Smyth v. The Pillsbury Co., 914 F. Supp. 97 (E.D. Pa., 1996), in which the court upheld the termination of an at-will employee based on a review of e-mail transmitted over the company network.

In a strongly written opinion, the court found that even assuming the employer had promised not to read employee e-mail, and not to fire someone based on the contents of e-mail alone, the employer is within its rights to do so. The American Management Association reported that 27% of companies it surveyed monitor employee e-mail.

But court rulings (and employers' cybersnooping) still seem to offend employees. Furthermore, the nature of the technology appears to allow more privacy than a telephone call and continues to invite surreptitious, scandalous, sex-filled or mutinous correspondence at work.

To counter e-mail's seductiveness, many companies now have written e-mail policies (as well as reminders circulated electronically) informing employees that their e-mail may be read by their supervisors. The signing of such forms (or the return of them electronically) forms a contract that provides the employer additional grounds on which to rely when e-mail is read and action taken in reliance on its contents.

An e-mail policy was critical to Bourke v. Nissan Motor Corp., Case No. B068705, California Court of Appeal, 2d App. District (July 26, 1993). The court found that no privacy rights had been violated, even under California's state constitution, which grants expansive privacy rights, or under common law, when an employer read personal e-mail, including correspondence of a sexual nature, that had been sent over the company's e-mail system.

The court's decision rested on the employee's signing of a policy agreeing to restrict all use of company e-mail to company purposes. The policy also explicitly stated that, in signing and returning the form, the employee had been given notice and understood that e-mail might be reviewed by people other than the intended recipient.

However, an e-mail case that garnered national publicity rested on a violation of privacy rights. In McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C., Jan. 26, 1998), involving a sailor dismissed from the U.S. Navy because of a query about his e-mail online name--which suggested that he was homosexual--the court found that the Navy had violated its "don't ask, don't tell" policy by obtaining information from America Online about the identity of the e-mail account holder.

The case settled before the court definitively held whether the Navy's actions violated the Electronic Communications Privacy Act (ECPA), 18 U.S.C. 2701 et seq., the federal statute that protects the privacy of stored electronic information. The Navy paid Mr. McVeigh's legal expenses and is allowing him to retire early with full benefits.

Privacy rights were also upheld in another case involving the military and decided by a military court, U.S. v. Maxwell, 45 M.J. 406, 1996 C.A.A.F. 116 (1996). When the FBI searched an officer's computer files, he challenged the search of his America Online e-mail correspondence on Fourth Amendment grounds and won. The judge found that the officer had a reasonable expectation of privacy in his personal America Online e-mail.

However, the court's ruling was narrowly tailored to encompass only e-mail sent between two America Online accounts, with the e-mail traveling wholly within AOL's proprietary system and not over the Internet. It is unclear whether the ruling could even apply to e-mail sent between an America Online subscriber and a subscriber to, say, the Prodigy Internet service.

A Case Contradicting the Maxwell Ruling

A case directly contradicting Maxwell is more frequently cited. In U.S. v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio Sept. 30, 1997), the court explicitly held that the defendant, an accused child pornographer, had no reasonable expectation of privacy while using America Online.

The distinction between an internal e-mail system and external, or Internet e-mail, is one to which courts seem sensitive. In Andersen Consulting L.L.P. v. UOP and Bickel & Brewer, Case No. 97 C 5501, 1998 U.S. Dist. Lexis 1016 (D. Ill. Jan. 23, 1998), the corporation was found not to be subject to the ECPA, because it operated its e-mail system only internally and was not providing e-mail access to the public. Thus, the defendant did not violate the ECPA by disclosing the contents of an e-mail message to a newspaper.

Still, because companies can be held responsible for the contents of employees' electronic correspondence, e-mail policies are spreading--some not well.

In Owens v. Morgan Stanley & Co., 96 Civ. 9747, 1997 Westlaw 403454 (S.D.N.Y. 12/24/97), black employees were allowed to proceed with a discrimination lawsuit against their investment house employer.

Their accusations of a racially hostile environment were based in part on the reaction to their complaints about the company's tolerating racist jokes circulated via e-mail.

However, the court was careful to note that objectionable e-mail alone is not sufficient to sustain a claim of a hostile work environment.

This ruling was relied on most recently in Curtis v. DiMaio, 1999 U.S. Dist. Lexis 5430 (E.D.N.Y., April 15, 1999), in which the court granted summary judgment for the defendants, finding that the transmission of two insensitive jokes over a company's e-mail system did not create a hostile work environment. It appeared noteworthy that the jokes were not sent directly to the plaintiffs.

Despite such rulings, the potency of racist and sexist e-mail in discrimination and harassment suits has led to the falsification of such e-mail--the planting of evidence, in effect.

The first conviction for such an offense was People v. Lee, No. C38925 (Cal. Sup. Ct., Jan. 30, 1997), in which the defendant was found guilty of falsifying e-mail messages for use as evidence to try to obtain a settlement of a sexual harassment suit.

Company's Actions upon Discovery Important

A company's actions when discovering damaging e-mail are taken into account in determining whether a hostile work environment exists.

In Angela Daniels and Dimple Ballou v. WorldCom Corp., No. Civ. A.3:97-CV-0721-P, 1998 WL 91261 (N.D. Texas Feb. 23, 1998), the court dismissed claims of racial discrimination based on offensive e-mail in a case in which the defendant promptly took remedial action, issuing oral and written reprimands to the employee who sent the offending e-mails and holding staff meetings to inform employees of the company's e-mail policy.

In hostile-work-environment suits, the employees seek to hold the employers responsible for the comments of their employees, in an extension of the doctrine of respondeat superior, which holds employers responsible for the acts of their subordinates.

But in Blakey v. Continental Airlines Inc. (N.J. Super. Ct. App. Div., June 9, 1999), all claims against the employer were dismissed, even though allegedly defamatory comments had been published on a company's internal electronic bulletin board, because the record established no basis for imposing vicarious liability on the employer for remarks posted by the employees.

The claims against the individual posters, which alleged sexual harassment, business libel and emotional distress, were dismissed on jurisdictional grounds.

Unionized Workplaces Are a Particular Problem

In unionized workplaces and other companies governed by the National Labor Relations Act (NLRA), employers should tread with care. In cases in which the speech was related to company business, even if the speech was insolent, courts have found for the employee.

In Timekeeping Systems Inc. v. LeinWeber, 323 NLRB No. 30 (NLRB 2/27/97), the board found that an employee could not be fired for using the company e-mail system to dispute the terms of a new company vacation policy and to challenge the veracity of the chief executive officer's explanation of the policy. The comments, however "flippant," fell within the NLRA's definition of "protected, concerted activity," as the messages sought to further discussion about the response to company policy, ruled the National Labor Relations Board.

Disgruntled former employees are taking to the Web, mounting Web sites accusing their former employers of misconduct. There are serious free speech issues to weigh in challenging such sites. However, when such a disgruntled person starts sending e-mail into the company, even if the e-mail relates to company policy, at least one court has enjoined the messages, on trespass grounds. In Intel Corp. v. Hamidi, Sacramento Super. Ct., (December 1998), the court found that mass e-mails to Intel constituted a trespass on the company's e-mail system, and it enjoined any transmission of further electronic messages to Intel employees at work.

Interestingly, trespass laws have also been used to foil "spammers" who transmit their unsolicited commercial messages over proprietary e-mail systems. Thus an ancient, land-based, local body of law has become a powerful weapon against digital mischief.

Sufficient to Establish Minimum Contact?

Many courts have grappled with whether e-mail transmissions are sufficient to establish minimum contacts, allowing the exercise of personal jurisdiction. Butcan e-mail transmissions that do not involve commercial activity constitute interstate commerce?

At least one court has held they can. In U.S. v. Matthew Joseph Kammersell, No. 2:97-CR-84C, 1998 U.S. Dist. Lexis 8719 (D. Utah, June 3, 1998), e-mail from the defendant, a Utah resident, to America Online facilities in Virginia and back to the victim, another Utah resident, was a transmission in interstate commerce sufficient to support a violation of 18 U.S.C. 875, which prohibits the transmission of threats in interstate commerce.

Can a single e-mail give rise to a contempt prosecution? The issue is still pending. The e-mail in question was sent to the entire judiciary of Washington, D.C., earlier this year. The transmission contained vulgarities and attacks on the fairness of Superior Court Judge John Bayly Jr., and it was signed by a person whose divorce case was pending brfore the judge.

Judge Bayly has asked the author of the e-mail to show cause why he should not be held in contempt for violating a previous judge's order prohibiting any additional filings in the divorce.

The U.S. attorney's office has argued against the prosecution, saying the man did not have sufficient warning that sending an e-mail to the court would be considered a filing and thus would violate the order.

In late spring, it appeared that the charge would not be filed, despite the vulgarity of the e-mail. However, the sender was put on notice: Any further e-mails, vulgar or no, to the District of Columbia judges would be considered filings, and thus would provide grounds for contempt. The man's court-appointed attorney has raised First Amendment objections.

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This article is reprinted with permission from the July 19, 1999 edition of The National Law Journal. © 1999 NLP IP Company. LawNewsNetwork.com.


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