Corrections or additions?
This article by Teena Chandy was published in U.S. 1 Newspaper on June 2, 1999.
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E-Mail Policy Be Careful
For most computer users, electronic mail has fast
become the primary medium for business and personal communication.
It is cheap, fast, and so convenient that in many circumstances E-mail
has replaced letters, telephone calls, and even face to face conversation.
Many even assume that E-mail, like the spoken word, is private, fleeting,
and does not leave a trace. But this ephemeral nature of E-mail is
deceptive, because in reality E-mail more resembles the letter. In
many ways it is even more permanent and risky. Not only does it leave
a written record and can be delivered to the wrong address, it can
also be retrieved. It can even be subpoenaed in a court case. You
can tear up a letter or burn it but no matter how diligently you “delete”
them, almost all E-mail messages are saved somewhere by some backup
method.
So it should come as no surprise that authorities were able to quickly
track down the instigator behind the infamous “Melissa” computer
virus. Or that officials at Raytheon were able to identify 21 employees
who allegedly divulged company secrets in an online business forum.
Or that a plot to distribute fake E-mail messages is at the heart
of a personnel controversy at Morgan Stanley Dean Witter.
More and more employees are finding out that the E-mail messages they
send or receive at work are not considered private at all and that
they could be used against them. The legal and ethical issues of cyber
communication — employers’ right to know versus employees’ right
to privacy — are being debated vigorously and companies are faced
with precedent-setting decisions.
An American Management Association (AMA) survey shows that 45 percent
of major U.S. firms record and review employee communications and
activities on the job (including their phone calls, E-mail, and computer
files) and 27 percent record and review employee E-mail messages.
Since most employers screen employee E-mail randomly, more companies
are reading personal E-mail as opposed to work-related E-mail. Personal
accounts are not totally safe either. An employer cannot be prohibited
from requiring an employee to print out messages from their personal
accounts accessed by a company-owned computer.
The result? An increasing number of resignations, terminations, and
employment-related lawsuits. An employee can be fired for insubordination
or similar charges that originate from an E-mail message. “Most
employees do not understand E-mail yet and use it in a way that is
far too risky in the current business environment,” says Lewis
Maltby, director of the workplace-rights office of the American
Civil Liberties Union (ACLU).
Many courts have ruled against employees in recent E-mail related
cases. A state court in California and a federal court in Pennsylvania
ruled that employers have the right to use surveillance. Maltby points
out that in the Smythe versus Pillsbury case in Pennsylvania, the
company had promised its employers that their E-mail would not be
monitored, yet fired an employee who vented to his co-worker about
his boss in an E-mail message. The court ruled against the employee
who sued the company for breaking its promise.
“The rationale for both these court decisions is that the equipment
used by employees to send and receive E-mail messages is owned by
the employer,” says John MacDonald, an attorney at Stark
& Stark, the Lenox Drive law firm. “Accordingly the employer has
the right to determine how and when its property is used.”
But when does an employer’s right to know become an
invasion of personal privacy? “Employers have no business reading
the private E-mails of their employees,” says Maltby. A survey
on E-mail privacy, conducted by Opinion Research Corporation as part
of Accountants on Call’s ongoing “Profiles of the American Worker”
series, revealed that more than half of employed Americans feel that
the E-mail they compose and receive at work should be private between
the writer and the recipient.
Nonetheless, court rulings so far have only indicated that employee
wishes do not necessarily prevail over employer decisions. “People
like to believe their conversations over the phone are private, that
they are entitled to privacy, and expect the same kind of privacy
when they are using E-mail,” says MacDonald. “However, courts
have ruled that an employee has no `reasonable expectation of privacy’
in interoffice E-mail communications.” As for personal E-mail
sent from the office, MacDonald says, “that is still an open issue.”
ACLU’s Maltby also agrees that, unless it is an outrageous situation,
an employee cannot do anything against an employer who used information
from an intercepted E-mail message against the employee. The employment-at-will
policy allows employers to fire employees for little or no reason
at all and monitoring E-mail communications gives employees yet another
reason to feel insecure about their jobs.
Monitoring, most companies are saying, is necessary to protect corporate
interests. It can expose an employee’s plan to leave the company and
take proprietary information, it can restrict employees from conducting
personal business on office time, and it can help track down sexual
harassment or other similar abuse. Chevron Corporation, for instance,
settled a sex discrimination lawsuit for $2.2 million in 1995. Among
the evidence was an E-mail message titled “25 reasons why beer
is better than women” retrieved from corporate computers.
Most companies, therefore, have adopted formal E-mail policies for
its employees. Almost all of the dozen companies that U.S. 1 surveyed
had an E-mail policy for their employees in place. “Any policy
should state that employees’ electronic communications are not private;
that the communications devices are employer property and that communications
shall or may be monitored,” says Steven M. Berlin of the
law firm of Buchanan Ingersoll at 500 College Road East. “Policies
should also restrict employee use of electronic communication systems
to business purposes.”
The E-mail policy at Cylogix clearly advises users “thatthey should have no expectation of privacy for any Internet use viathe firm’s facilities, whether business or personal.”John McKeegan, spokesman at Johnson and Johnson, saysthe company’s policy is that E-mail is for business use and it iscommunicated to all employees. “If E-mail is used inappropriatelywe have a talk with that employee.”A human resources representative at Summit Bank stated thatE-mail is company owned and not private: “We have a legal andan ethical obligation to protect the company and its employees, andto prevent abuse of the system.”Stark & Stark’s MacDonald, in contrast, is of the opinion thatthere is no legal requirement to monitor employee E-mail. “Itis the duty of the company to investigate a complaint,” says MacDonald,”but it has no other legal obligation to monitor its employee’sE-mail.Companies that do monitor should probably say so. The AMA survey revealsthat 84 percent of companies that monitor employee E-mail do notifytheir employees. Such a policy would make it easier for the companyto defend itself in the event of a lawsuit, says MacDonald.Although the law may allow an employer to monitor electronic communicationsin certain ways, the decision to do so must remain a business decision,says Berlin. The phrase “Big Brother is watching you” hasacquired frightening significance in today’s workplace. While employerconcerns for such monitoring are often legitimate, this could alsocreate an “us versus them” attitude, says Berlin.Only three of the Princeton companies surveyed said that they hada specific hands-off policy. Dow Jones, Church and Dwight, and Neostratareserve the right to monitor if a situation warrants it, but otherwisethey say they trust their employees to use their best judgment andtheir policy is to not monitor any employee E-mail.”Dow Jones does not have an E-mail policy, but it is assumed thatE-mail will be used for company business,” says Richard Tofel,spokesperson for Dow Jones. “Of course we know our employees havepersonal lives, and just as they may use the telephone to call theirchildren in the middle of the day, they might also E-mail their children.””We have a written policy that is communicated to our employees,”says Mark Bilawsky, vice president of Church and Dwight. “Ouremployers are also aware that we do not eavesdrop or conduct any kindof spot checks as regular procedure.”While most companies feel that monitoring is necessary “in thebest interests of the company,” the decision to not monitor –or as in the case of Dow Jones not having an E-mail policy at all– could be in the best interests of the company too. As Berlinof Buchanan Ingersoll points out, monitoring could have an impactoutside the workplace as well. For instance, a lawyer representingan employee suing the company for sexual harassment can demand tosee all the E-mail communications of the alleged perpetrator. “Amonitoring policy may strengthen an argument that an employer hadnotice of the wrongful or discriminatory acts of its employees ormanagers,” says Berlin.MacDonald of Stark & Stark says that E-mail may play a large rolein discriminatory and wrongful discharge cases in the future. MacDonaldpredicts a rise of cases where groups may feel that they were discriminatedagainst and that their actions were unreasonably monitored by theiremployers.So what E-mail policies should bosses and workers adopt? “If thedecision is to monitor, use the least intrusive monitoring measuresnecessary,” says Berlin of Buchanan Ingersoll. He suggests monitoringemployee communications only during probationary or review periods.As for employees, “Never say on E-mail anything that you wouldnot want your boss to read,” says Maltby. “What is amazingis that even in companies where employers have told their employeesabout their E-mail policies, they are awfully casual about using E-mail.”Maltby says that the ACLU will continue to work to update privacylaws: “Law always lags behind technology but in the case of onlineprivacy, the law is lagging far too much behind. The last time theissue was brought up in Congress was in 1994 and the original sponsorshave not reintroduced it.”Maltby encourages employees to write their representatives. “Weare still a democracy, and if enough employee citizens write to theircongressmen maybe something will change.” And until that happens,Maltby warns, “be very careful.”– Teena ChandyTop Of PageE-mail DisastersTales abound of E-mail disasters resulting from theinadvertent use of E-mail. You type a cheeky note to your colleaguein private and your boss could be reading it. The mouse pointer inthe wrong spot could get your message to the wrong person, and worsestill, a lot of wrong persons. CNET has posted some instances of E-maildisasters at https://www.cnet.com, and also offers some tipsfor safe and effective E-mail use:1.) Set up a queue: Hold your messages in your out-boxfor a set period of time before you send them. That gives you a chanceto double-check the addresses before they go on their way.2.) Encrypt it: Many workplaces do not allow this practice,however, encrypting a message ensures that only the intended recipientcan read it, even if other people accidentally get the message.3.) Use Freemail: Using a free, web-based E-mail accountfor personal messages ensures private messages do not get mixed upwith business ones. You won’t have access to any company-wide aliasesfrom your freemail account, and your messages won’t be stored in yourcompany’s mail server.4.) Field labeling: Many corporations have company-wideE-mail aliases to make mass communication easier. So, when you opena message that was mailed to the alias, the sender’s name shows upin the From field — but the Reply To field is often set to thecompany-wide alias. That means clicking “Reply” will sendthe message to everyone. When you reply to a message, always makesure the right address is in the To: line before you click Send.5.) Keep romance at home: Never send romantic E-mail fromwork. Your employer may be monitoring your incoming and outgoing mail.Send E-mail from home, use the phone, or have the conversation inperson.6.) Don’t request receipts: Never use the Receipt Requestedfeature when posting to a mailing list. It generates useless trafficthat could slow down or shut down your E-mail system.Top Of PageRaytheon’s CaseAnonymity on the Web is a rather fragile issue, as shownby the just-settled lawsuit by the engineering company Raytheon againstits employees who participated in a business forum on the Internet.Raytheon — a global company with 875 employees at the CarnegieCenter — obtained court motions against Yahoo!, America Online,and the other Internet services to obtain the identities of 21 participantswho Raytheon alleged were using aliases to divulge company secrets.The Raytheon employees participated in forums provided by mainstreamInternet companies, but the Web also offers other such “businessforums.” Vault Reports, a New York based company, has posted the”Electronic Watercooler,” an online network of uncensoredbulletin boards, at https://www.vaultreports.com to attract employeesand job seekers from more than 800 companies. “Feel free to gossipabout your co-workers, share salary and bonus information, inquireabout the hiring process, chat about company culture quirks, and muchmore” the website says. Usually anonymous, the messages on theseboards include everything from general workplace gripes to “insiderinformation.”But how anonymous can you be on the Internet and are employees participatingin such chatrooms putting their jobs on the risk? Yes, if the Raytheonincident is any indication. John Jessen, president and chiefexecutive of the Seattle-based Electronic Evidence Discovery Inc.,says that they track down senders of anonymous E-mail all the time.The Raytheon employees, who were generally exchanging gossip and chattingabout Raytheon’s stock price and business deals, used aliases to protecttheir identities. Last week, after Raytheon had discovered all 21identities, it dropped the suit against the employees. That promptedcountercharges that Raytheon used the legal system merely to discoverthe identities. Four of the employees have since quit, and the othershave entered “corporate counseling.”Next StoryCorrections or additions?This page is published by PrincetonInfo.com— the web site for U.S. 1 Newspaper in Princeton, New Jersey.
