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It’s 18 months after Sept. 11. You are outside counsel to a corporation. In-house counsel tells you that he would like to monitor the e-mail of a group of employees as a preventive measure. He doesn’t have any reason to suspect that these employees are disclosing trade secrets or proprietary information, or accessing adult Web sites. He is just disturbed by what he hears is going on in the industry, and he would like to make sure that the company’s employees are not engaging in any illegal behavior. What do you tell him? The answer is: It all depends. While workplace monitoring is on the rise, you should still be aware of the legal and ethical bars to certain kinds of monitoring, and prohibitions on a lawyer giving advice to a client to conduct monitoring. The American Management Association’s annual “Workplace Monitoring & Surveillance” survey found that 77 percent of respondents monitor or record their employees’ communications or Internet access. Of the companies that monitor employee communications, the majority have written policies governing electronic communications. Nearly 24 percent of companies use keyword searches of e-mails, primarily to detect sexual phrases. There are a few rules of thumb in advising a client about workplace monitoring. First, if the employer has a “no privacy” workplace communications policy, employees are on notice that their communications are being monitored, and courts generally will find that they lack an expectation of privacy in workplace communications. Muick v. Glenayre Electronics (7th Cir. 2002). Sometimes courts look to whether an employee has specifically signed a policy agreeing to electronic monitoring, or whether the electronic mail system provides a written notice each time the employee logs into the system. Fraser v. Nationwide Mutual Insurance Co. (E.D. Pa. 2001). However, if the company does not have a “no privacy” policy, then you have to look at federal and state wiretapping and electronic communications statutes, and the Rules of Professional Conduct that govern lawyers. WIRETAPPING LAW 101 The first federal wiretapping statute that governs the permissible monitoring of employee communications is the Wiretap Act, 18 U.S.C. �2510 et seq. It governs the monitoring of communications during their transmission, typically the surreptitious recording of telephone conversations. The second is the Stored Communications Act, 18 U.S.C. �2701 et seq., which deals with the examination of communications after their transmission. This statute comes into consideration if an employer wants to see e-mail messages after they were received or sent by an employee. Both federal statutes contain exceptions that may allow for workplace monitoring. For example, both permit monitoring of employee communications where one party has given consent, which could be obtained through a waiver in an employee handbook or agreement with the employee. 18 U.S.C. ��2511(2)(c), 2702(b)(3). While most states have adopted laws that mirror the federal laws, at least 10 states � California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington � require the consent of both parties before a conversation can be recorded. Therefore, in those states, employers cannot legally monitor workplace communications between an employee and a third party (whether a customer, business associate, or friend), unless the third party has consented. A second exception under the federal Wiretap Act is that it is legal for the provider of a communication service to monitor “communication in the normal course of his employment while engaged in any activity which is a necessary incident . . . to the protection of the rights or property of the provider of that service.” 18 U.S.C. �2511(2)(a)(i). The Stored Communications Act has a similarly worded exception. 18 U.S.C. �2702(b)(5). This means that when an employer provides telephone or e-mail service to its employees, including cell phones, then the employer can intercept communications made on its systems if necessary to protect its “rights or property.” For instance, that’s why telemarketers mention that calls might be monitored for quality-control purposes. While it is probably not advisable or practical to monitor all communications on employee cell phones or all company e-mail, courts have uniformly allowed monitoring if the employer suspects that these communications are being used for illegal purposes, such as the unauthorized disclosure of trade secrets to third parties, insider trading, or discriminatory conduct. Briggs v. American Air Filter Co. (5th Cir. 1980). In fact, an employer may sometimes have a legal obligation to monitor employee e-mails, if, for example, it believes that an employee is using the e-mail to sexually harass another employee. Muick v. Glenayre Electronics (7th Cir. 2002); Garrity v. John Hancock Mutual Life Insurance (D. Mass. 2002). THE GOVERNMENT’S EARS There are parallel questions regarding monitoring communications of government employees. Generally, government employees have a constitutional right of privacy in their office computers. However, if the employer has policies that put employees on notice that their e-mail and Internet access may be monitored, and that certain uses are prohibited, then the courts have permitted agencies to monitor e-mail. For example, in a 5th Circuit case, United States v. Slanina (2002), monitoring was upheld when a government employee was found to have illegally downloaded child pornography. In the 2nd Circuit, the New York State Department of Transportation was found to be within its rights to monitor the Internet usage of an employee who downloaded software for his own tax preparation business. Leventhal v. Knapek (2001). In fact, the Administrative Office of the U.S. Courts even scrutinized the e-mail and Internet access of the federal judiciary, without their consent or notice. After a public protest by 9th Circuit Judge Alex Kozinski, the Judicial Conference of the United States, chaired by Chief Justice William Rehnquist, provided for continued monitoring of the judiciary’s Internet access with notice, and blocked the downloading of sexually oriented materials and materials related to illegal activities. Eight states � Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, and Washington � have a state constitutional right to privacy which may provide broader protections for state and local government employees than that provided to federal employees. However, one decision from the California Superior Court, Flanagan v. Epson America (1991), refused to protect, under the state constitution, employees from monitoring of their e-mail, despite the fact that California extends privacy protection to employees in private businesses. Neither the Wiretap Act nor the Stored Communications Act prohibits the review of stored e-mails after they are already transmitted. Employees should be aware that there are widely available “packet-sniffing” software and keystroke logger programs that allow their employers to retrieve and reconstruct their e-mails sent on personal e-mail accounts from office computers. The rationale is that a company is free to use this software, even to retrieve e-mails sent on a personal account, because the employee lacks an expectation of privacy in the company’s office computer or laptop. RULES FOR LAWYERS And what about the lawyers themselves? Even though it may be fine for company management to monitor on its own, it may not be permissible for you, as an attorney, to do the same thing, even if it is permitted in the state where you work. In fact, up until June 2001, the American Bar Association took the position that a lawyer could not electronically record any conversation without the consent of all parties to the conversation. In June 2001, it rescinded this blanket rule because it was contrary to the law of the majority of the states allowing for one-party consent to recording of conversations. However, the courts and bars in a number of states continue to adhere to the older, stricter approach, which makes it illegal for lawyers to record conversations, even though their clients may do so without worry. The courts have even sanctioned attorneys for engaging in such conduct. In Nissan Motor Co. v. Nissan Computer Corp. (C.D. Cal. 2002), the court condemned the surreptitious recording of conversation with opposing counsel. And in People v. Selby (Colo. 1979), an attorney was disbarred for tape recording a conversation with a judge in his chambers. An attorney can be found to violate a number of rules if he or she practices in a state that requires consent of all parties to a communication before that communication can be monitored, and he or she advises that monitoring is permissible when consent is not obtained. See, for example, Rule 8.4 (proscribing misconduct, including violations of law and dishonesty) and Rule 4.4 (proscribing use of illegally acquired evidence). An attorney who falsely denies that a conversation is being recorded may violate Rule 4.1 (proscribing making a false statement of material fact to a third person). So what’s the answer to the corporate counsel’s questions? Companies that feel it necessary to monitor employee communications should institute a “no privacy” policy to let employees know that they may be monitored. They should include the policy in their handbooks and have employees sign that they agree to these policies. As an attorney, it is probably safest not to tape record or monitor communications yourself, unless you have the permission of all the participants to the communication. And be sure to advise in-house counsel not to do it, either. Lynne Bernabei is a name partner at Bernabei & Katz, a civil rights firm based in Washington, D.C. Alan R. Kabat, an associate, assisted with the research and writing.

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