Is Big Brother spying on you in the office?

The court agreed that Pillsbury had broken its promise to Smyth, but held that he had no claim against the company nonetheless.¹³ Its language starkly underscores the limited privacy rights that employees have in their e-mail messages:

... unlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost ... even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications ... we do not find that a reasonable person would consider the defendant's interception of these communications to be a substantial and highly offensive invasion of his privacy ... by intercepting such communications, the company is not ... requiring the employee to disclose any personal information about himself or invading the employee's person or personal effects. Moreover, the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments.

Far more than the telephone, e-mail underscores the tension between an employee's work and his personal life. While most employees would agree that it would not be appropriate to spend large amounts of time making personal phone calls in the office, it's more difficult to see the harm in dashing off a few quick e-mails to family and friends. From the employer's perspective, however, personal e-mails are more problematic than personal telephone calls: The time required to send even a "quick" e-mail adds up over the course of the day, and even more distressingly, an inappropriate e-mail can later play a starring role in litigation against the company.

It was precisely those types of concerns that have led hundreds, if not thousands, of companies to fire employees for improper use of e-mail. Here are just a few examples, drawn from mid-1999 to late 2000:

In Michigan, Dow Chemical fired twenty-nine employees and suspended forty-two others for sending pornographic or "violent" images over the company e-mail system.

After a review of its employee e-mail archives, The New York Times fired twenty-three workers for distributing pornography and dirty jokes by e-mail. Xerox fired twenty-two people from its Virginia office for sending offensive e-mails. The St. Louis brokerage Edward Jones & Co. fired eighteen employees and warned forty-one others about sending pornography across the company e-mail system.

By now, employers can rely with confidence on the long line of court decisions that have resolved the tension between the company's property and employee privacy interests in favor of businesses. Whatever common law interests in privacy you may think you have in your electronic communications are superseded by the fact that your employer owns and operates the system over which the e-mail travels.

The Privacy of Web Surfing
At the end of each business trip or family vacation, when you've lugged your weary self home, the first cold dash of reality is unpacking. Out from the luggage come the travel-worn clothes, souvenirs, unsent postcards, flight-surviving paperbacks, purloined toiletries, amusement park stubs, credit card receipts, local coinage, and tourist maps. This motley collection of stuff offers a good idea of where you went, the food you ate, and what you did while you were away.

Each time that you travel the World Wide Web, you bring back precisely the same type of post-travel tidbits, albeit in electronic form. It's a little more difficult to view the remnants of your Web journeys; the trade-off, however, is that the record of the journey maintained by your computer is far more detailed than anything that comes out of your suitcase.

The Lure of Office Web Surfing
The popularity of Web surfing in the office can be traced to one main factor: Even today, the Internet connections in most offices are far faster than the connections that most employees have at home. That helps to explain why graphics-intensive sites like sports news, stock trading, and pornography see strong surges in activity beginning at 9:00 a.m. East Coast Time.

As we saw in Chapter 1, Web surfing by employees raises two main concerns for employers: productivity and liability due to the dissemination of inappropriate materials. Without adequate discipline, the World Wide Web can be a tremendous time sink; no other medium comes close to matching the Internet's depth of materials, interactivity, and sheer distractive potential.

Ironically, nonproductive Web surfing can be a problem for adult companies as well. Juli Stone, the director of sales and marketing for Falcon Foto, one of the largest providers of content for adult websites, has had to contend with employees who don't spend enough time surfing porn sites. "People have gotten into trouble at our office," Stone said, "for visiting nonporn sites too often. One guy was fired for spending all day monitoring his auctions on eBay." Falcon Foto doesn't have a written policy regarding Web use, Stone reported. "It's easy enough to walk around the office and see what everyone is doing," she said. "If they're not looking at a porn site, they're not working."

Excerpted from “The Naked Employee: How Technology Is Compromising Workplace Privacy” by Frederick S. Lane. Copyright © 2006, Frederick S. Lane. All rights reserved. Published by American Management Association. No part of this excerpt can be used without permission of the publisher.

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