Many people are employed by companies that provide them with an electronic mail (“e-mail”) account for work. Daily, many employees use their work e-mail accounts to communicate with family members, friends, physicians, dentists, florists, plumbers, etc., for what are frequently deemed non-work related and personal matters. E-mail communications sent intra-company and those that are sent from an employee’s workstation to another company or from another company to an employee may be subjected to monitoring by an employer. This includes web-based and private email accounts such as Gmail and Yahoo as well as instant messages.
Employees’ use of work e-mail accounts for personal use coincides with the simple fact that it is more convenient than using their own electronic devices. Most employers, if not all, may allow employees reasonable use of their e-mail accounts for personal matters. Even if a company does not have a policy regarding e-mail usage, it is wise to expect that a company may have the right to monitor its employees’ e-mail communications. As long as these personal uses are not abused, most employers would be hard-pressed to find issue with personal uses of employees’ work e-mail accounts. While your average employee may have a reasonable expectation of privacy with regards to the transmission and receipt of such personal e-mails over an employer’s network, an employer does own the system over which such email communication travels and has the right to monitor such communications.[1] Courts have found that employers are generally free to read employees’ email messages, as long as there’s a valid business purpose for doing so. This realization becomes very important when an employer finds itself in litigation and may need to turnover its electronic stored information a/k/a ESI to the other side.[2] Sometimes litigation does not have to be involved for personal emails to be exposed to the light of day revealing major embarrassment to the company and the particular employee(s)-author(s) of such e-mail communications.[3]
Recently, multi-national company Sony’s [4] e-mail system was the victim of an extensive and carefully planned intrusion.[5] It would appear that the Democratic People’s Republic of Korea, a/k/a North Korea, sanctioned a massive intrusion into Sony’s computer system that “tapped into a trove of hypersensitive, internal information.”[6] This intrusion was a deliberate and vehement response to Seth Rogen and Evan Goldberg’s North Korean satire The Interview. Since the intrusion into Sony’s e-mail system, a plethora of highly sensitive and embarrassing email communications between Sony executive Amy Pascal and producer Scott Rudin have seen the light of day.[7]
This incident emphatically underscores a point I frequently convey to clients, friends and family members: do not use your work e-mail for personal uses. Of course, this is quite a tall order since one may be required to communicate with family and friends concerning urgent matters while he or she is at work. Nonetheless, if one ignores the impact of the Sony story and concludes that his or her organization is not a potential target for North Korea, please pause and guess again. Your individual employer may lack the credentials of a Sony and may not be on North Korea’s radar but it is not immune from lawsuits. Armies of contract attorneys hired over the years to review ESI subject to electronic discovery for large and complex litigation could tell you stories of embarrassing details regarding the lives of ordinary people who would cringe that their private comments and exchanges were being laid bare to complete strangers. The author has experienced this firsthand by reviewing several hundred pages of sensitive and confidential documents regarding stock and trading accounts, gambling, love affairs, bored housewives, unwanted pregnancies, soft porn pictures, medical issues, family matters and entanglements, off colored jokes and more. Did the communicants understand and realize that one day their e-mail communications would be a source of soap opera-esque entertainment for hundreds of strangers? Most likely not and those same people would be embarrassed if they only knew the reactions that these communications elicited.
In light of the recent Sony story, I cannot state with any more vigor that employees should, where possible, refrain from using their work e-mail for personal matters. Also, remember even if an employee uses his or her personal email account from his or her workstation it too could be subjected to monitoring despite the employee believing that he or she has a right to privacy. While you believe it may not be a big deal what you write in your e-mails, it very well could provide enough personal information about you to detect a lifestyle pattern and make your life quite uncomfortable. Perhaps, this could take the form of sensational journalism in the tabloids but it is more likely to take the stage in electronic discovery and provide much amusement to several hundred strangers during litigation without your knowledge or awareness.
[1] See Smyth v. Pillsbury, 914 F.Supp. 97 (1996).
[2] ESI or electronically stored information, refers to all information stored in computers and storage devices. This includes any data including ESI found in e-mail, voicemail, instant and text messages, databases, metadata, digital images and any other type of file. See http://www.webopedia.com/TERM/E/ESI.html.
[3] http://abovethelaw.com/2014/12/the-sony-hack-teaches-what-document-reviewers-knew-all-along/.
[4] The actual victim of the intrusion is Sony Pictures Entertainment, the American entertainment subsidiary of Japanese multinational technology and media conglomerate Sony.
[5] http://www.vulture.com/2014/12/everything-sony-leaks-scandal.html
[6] Id.
[7] Mike Fleming, Jr., Scott Rudin Apologizes After Leak Of Sony’s Hacked Racially Insensitive E-Mails On Barack Obama, Deadline, December 11, 2014; Variety Staff, Sony’s Amy Pascal Apologizes for Obama Emails, Variety, December 11, 2014; Christopher Rosen, Scott Rudin & Amy Pascal Apologize After Racially Insensitive Emails About Obama Leak, The Huffington Post, December 11, 2014.
About Andre Wrighte
Andre Wrighte is solo practitioner who focuses his practice on helping his clients to find solutions to problems by advising, counseling and representing them in matters concerning business planning and formation, corporate-related issues, commercial and real estate transactions. André also represent clients in commercial litigation proceedings, real estate transactions and estate planning/probate practice. For more information visit http://www.wrightelaw.com, call (773) 273-9815 or awrighte@wrightelaw.com. Find his blog at The Wrighte Law here.
Disclaimer
The author disclaims all liability and recommends that the reader consult with a competent attorney. Do NOT rely on this article or posting. This article or posting does NOT establish an attorney-client relationship nor does it constitute legal advice.
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