February 9, 2010

Electronic Privacy and the Supreme Court

by Daniel I. Prywes
The Corporate Counselor

The Supreme Court will soon weigh in for the first time on the permissible scope of employer monitoring of employees' electronic communications. Such monitoring activity raises many issues that remain the subject of uncertainty in this developing area of the law.

The case under consideration by the Court, Ontario v. Quon, arises in the context of government employees, who are protected from unreasonable searches by the Fourth Amendment. Private-sector employees have no such constitutional protection. Nonetheless, the Supreme Court's forthcoming ruling will likely have implications for private employers who face employee claims alleging an invasion of their common-law privacy rights.

Courts have generally upheld the right of private employers to monitor electronic mail and internet usage by employees while they are using the employer's network, provided that employees are given notice that the network is intended solely for business usage and that it is subject to monitoring by the employer. Beyond this "safe harbor," there are a dizzying array of issues concerning the permissible scope of employer activity in monitoring employees' electronic communications.

Read the complete story (Some news sites require registration)