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Employers and employees alike may often wonder whether or not the former can intercept or gain access to the e-mails of the latter. Employers want to monitor their employees to ensure that e-mails are being sent and received at work for proper business purposes; employees are interested in having some privacy. Developing case law under the Electronic Communications Privacy Act (ECPA) holds that while employers generally may not intercept e-mails in transmission to or from employees, they can gain access to stored e-mails. Given that it takes hardly any time for an e-mail to be transmitted, employers have apparent wide latitude in gaining access to e-mails that have been sent or received and that are stored in company e-mail inboxes and outboxes. TITLE I OF ECPA ECPA, at Title I, prohibits “intercepts” of electronic communications like e-mails. An “intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device.” 18 U.S.C. � 2510(4). So far, every federal appellate court that has analyzed the issue has concluded that an “intercept” under ECPA must take place contemporaneously with the transmission of the e-mail. “Intercept” was first defined as contemporaneous with respect to aural communications under the former Wiretap Act (formerly found at 18 U.S.C. � 2510 et seq.) When Congress amended the Wiretap Act in 1986 to create ECPA and to broaden its scope to include electronic communications, courts have held that it did so while not intending to change the definition of “intercept.” Furthermore, courts have noted that the differences between the definitions of “wire communication” and “electronic communication” in ECPA support the conclusion that stored email cannot be intercepted within the meaning of Title I. While a “wire communication” includes “any electronic storage of such communication” (18 U.S.C. � 2510(1) [superseded by the USA Patriot Act], an “electronic communication” is “does not include � any wire or oral communication.” 18 U.S.C. � 2510(12). Because “wire communication” explicitly included electronic storage but “electronic communication” did not, it has been held by the courts that an e-mail in storage cannot be “intercepted,” because an e-mail in storage is not an “electronic communication.” Thus, while an employer may not utilize devices such as “sniffers” to truly intercept e-mails of employees while in transmission, once an e-mail has been sent, received and then resides in storage, an employer likely would not run afoul of Title I of ECPA in gaining access. This result is somewhat ironic, given that some of the impetus behind Congress in enacting ECPA was to provide protections to electronic communications. Some of the courts have noted this irony, but they leave it up to Congress to amend ECPA if that is its intention. TITLE II OF ECPA ECPA, at Title II, can create civil liability for anyone who “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. � 2701(a). However, ECPA excepts from Title II liability seizures of e-mail authorized “by the person or entity providing a wire or electronic communications service.” 18 U.S.C. � 2701(c). Accordingly, courts have held that to the extent an employer accesses e-mails stored on its on system, the employer’s search falls within the exception to Title II and there is no liability. So an employer likely is safe under ECPA in terms of searching stored e-mails on its own network, but the employer should be reluctant to seek out e-mails outside of its electronic communications service, such as trying to obtain e-mails sent or received by employees on Yahoo or Hotmail accounts. RECENT CASE EXAMPLE The 3rd U.S. Circuit Court of Appeal faced the issue recently in Fraser v. Nationwide Mutual Insurance Company. Richard Fraser, who had been terminated by Nationwide as one of its insurance agents, said he was terminated improperly because he had lodged criticisms and made complaints about certain conduct by Nationwide. Nationwide argued that it terminated Fraser because he had been disloyal in the way he dealt with competitors of Nationwide. Nationwide became concerned that Fraser might be contacting further competitors to reveal Nationwide’s protected secrets. Nationwide thus searched on its main file server for e-mails showing improper behavior by Fraser. According to Nationwide, the e-mail search confirmed the suspected disloyalty, and it was for that reason that Fraser was terminated. Fraser then filed suit against Nationwide for wrongful termination, for alleged violation of his privacy rights under ECPA and a parallel Pennsylvania statute, and for other relief. The federal trial court concluded that Fraser’s privacy rights under ECPA and parallel state law were not violated, and the appellate court agreed. Specifically, based on the statutory language of Title I of ECPA, the trial court and the appellate court found that there was no “intercept” because Nationwide searched stored e-mails and did not capture emails during transmission. Moreover, because Nationwide accessed its own system, its conduct fell within the exception to Title II of ECPA. Employers still would be smart to have employees sign company business equipment policies, agreeing that the computers and systems of the employer are company property, are to be used for company purposes, and that employees do not have any expectations of privacy in their electronic communications at work. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to these columns, please send him an e-mail with “Subscribe” in the subject line.

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