When Federal Law Treats You as a Hacker

20 December 2013 Labor & Employment Law Perspectives Blog

Edward Snowden and Julian Assange have become recent public faces of hacking. But hacking is not always sensationalized by stolen state secrets, diplomatic crises, and asylum applications. As we previously reported, laws intended to address hacking are increasingly being brought to bear on more mundane workplace settings. Though these settings are much less controversial than the more publicized instances of hacking, they nonetheless provide a cautionary tale about the potential consequences of lax electronic-monitoring policies.

Consider one recent example of alleged hacking where an employee of a telecommunications company used her company-issued blackberry for both personal and business purposes. Before she quit her job, she returned the device to her supervisor, mistakenly believing she had deleted her personal Gmail account from the phone. Her supervisor then took a keen interest in her emails and spent the next 18 months perusing her personal emails (over 48,000 of them).

No state secrets were stolen, no undercover operatives identified, no foreign leaders incensed. But that is little comfort to the employee whose communications about her family, finances, health, and other personal matters had allegedly been read by a supervisor she once worked for.
So the employee sued under Electronic Communications Privacy Act (“ECPA”), a law primarily designed to provide a claim against computer hackers. The court recognized that the supervisor was not a “hacker” in the conventional sense. After all, as a supervisor, he was authorized to be in possession of the blackberry. Further differentiating him from a traditional hacker, the supervisor did not “hack” the employee’s account in the sense that he did not misuse or manipulate a password to access the emails. Nonetheless, the court recognized the employee could bring a claim against the supervisor and the employer under the ECPA because, within the meaning of that law, hacking is merely accessing stored electronic communications without consent.

How to avoid this situation? Employer policies should clearly define an employee’s expectation of privacy and the employer’s right to monitor communications. Even better, employers could obtain have an employee’s consent – preferably in written policies and signed acknowledgments – before accessing employee emails, particularly if there is some reason to look at email accounts that are not issued by the employer. Courts are very reluctant to infer or imply consent. For example, a court will not infer consent to monitor communications merely on the basis that the communications occurred on a company-owned device or because the employee knew the employer was capable of monitoring communications. Nor will a court infer consent from the fact that an employee negligently left the “e-mail door open” to her supervisor. A few relatively easy and proactive steps regarding electronic device usage and communications up front can prevent a lot of potential headaches in the future.

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