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In most law offices, surfing the Web and sending and receiving e-mail is a routine part of a typical workday. But it is not without hazards. Not only does personal Web surfing and e-mail use affect productivity, it also can expose your firm to potential employment-related liability for inappropriate use of these resources. The risks increase exponentially with the popularity of e-mail jokes and other nonbusiness activities. In addition, too much ancillary Web activity can clog your network, increase your risk for viruses and jeopardize confidential data. The good news is that the explosion of Internet and e-mail abuse has generated products designed to enable you to monitor your employees’ Internet and e-mail activity. Firms can monitor employees’ computer activity via a wide range of products — known as snoopware, spyware, nonviral mailware, hackers’and surveillance utilities — that gather information about a person’s computer activity. MONITORING BASICS Three categories of PC monitoring products exist. � Keystroke — software or a device that records every key struck by a user and every character of the response that is returned to the user. � Internet Use — an Internet-usage reporting, management and policy compliance tool for tracking Web activity. Logs may be maintained to record sites visited, time spent surfing, bandwidth usage and category of sites visited. Alerts can be sent to administrators when visits to inappropriate sites are detected. More sophisticated programs can also provide Web content filtering to enforce firm Internet policy rules concerning unacceptable Web site content, thereby preventing users from accessing unacceptable Web sites. � E-mail (intra-office and mail sent over the Internet) — software that inspects the content of e-mail messages and attachments for compliance with the firm’s e-mail policy. The content of each message is analyzed for unacceptable words and phrases. Not only can the transmission of offensive language be detected, but other “firm sensitive” key words can be programmed to detect communication of confidential data, such as financial information. Message filtering for select message content can reduce unsolicited advertisements or spam. TAKING ACTION When unacceptable messages are detected, firms have a number of options available, including: � block — prevent the message from reaching the recipient; � pass — allow the message through; � redirect — prevent the message from reaching the recipient and give it to another address; � alert — send an alert to the firm e-mail administrator; � forward — send a copy of the e-mail to the selected user with a short message appended to the subject line; � bounce — pass the message on to the recipient, but return a copy to the sender with a notice that the message does not conform to the firm’s e-mail policy; and � disclaimer — add a text disclaimer message above or below the body of any e-mail. Searching for “Internet Monitoring” on the Web will return an overwhelming list of products. My personal experience with Elron Software’s Web Inspector (for Web browsing) and Message Inspector (for e-mail monitoring) has been very good. See www.internetmanager.com. ANTI-SPY SOFTWARE Some vendors have created software that works as a countermeasure to being spied on. These products alert users when their PC is being monitored and disable the monitoring program. This development naturally has prompted the manufacturers of monitoring software to change their programs to defeat the products that are designed to detect and defeat them. TO MONITOR OR NOT TO MONITOR Some may argue that it is all right not to monitor employee computer use. But there has been a tremendous increase in lawsuits alleging discrimination and harassment based on evidence from e-mail and Internet use in the workplace. It makes sense that firms should be vigilant about Internet-based employee conduct. This area of the law is rapidly evolving and care should be exercised in implementing policy. Numerous legal issues are raised by the use of PC monitoring devices, including questions about Fourth Amendment rights, The Electronic Communications Privacy Act, The National Labor Relations Act, common-law tort liability and state-specific case law. But where notice of the PC monitoring has been clearly communicated to the employees — extinguishing any expectation of privacy — the majority of decisions lean in favor of the employer’s right to monitor. Courts are seeing more negligent retention, negligent hiring and negligent supervision claims, as well as harassment and discrimination claims, arising out of Internet and e-mail use in the workplace. Firms should consider whether to establish policies on computer and Internet use, and whether to institute a monitoring program. The author is of counsel and director of technology with Grotta, Glassman & Hoffman of Roseland, N.J.

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