2002-06-26 CC Packet - Laserfiche WebLink

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.. Case example: United States v. Simons, 29 F.Supp.2d 324 (E.n.Va. 1998) An employee was charged with receiving and possessing materials containing child pornography. The district court held that the employee lacked a reasonable expectation of privacy with regard to his Internet use at work. The fact that the employer had an Internet policy in place was a significant basis for the court's decision. 2. Invasion of privacy The Minnesota Supreme Court recently recognized the right to a private cause of action in Minnesota for invasion of privacy. Lake v. Wal-Mart. Inc., 582 N.W.2d 231 (Minn. 1998). The Wal-Mart case did not address invasion of privacy in an employment context. However, it is possible that an employee could claim that employer monitoring of employee use of technology and the Internet in certain circumstances is an invasion of privacy. This issue has not been litigated in Minnesota, but a review of invasion of privacy cases in the employment context from other jurisdictions suggests that an employee must have a reasonable expectation of privacy in the area subject to employer monitoring to successfillly advance a claim for invasion of privacy. Case example: Smyth v. Pillsbury Co.. 914 F.Supp. 97 (E.D. Pa. 1996) An employee exchanged several e-mail messages with his supervisor in which he made offensive references and threats concerning the company's management. One of the company's executives saw a printout of one of the messages. The company reviewed the employee's e-mail account and found several offensive messages. The company terminated the employee, and the employee sued for invasion of privacy. The Pennsylvania court ruled in favor of the employer. The court based its decision in part on its fmding that an employee should not have a reasonable expectation of privacy in e-mail sent over a company system. 3. Wiretapping laws Cities considering whether to monitor employee e-mail should be familiar with the federal and state laws relating to the interception of electronic communications. These laws are commonly referred to as wiretapping laws. These laws grant certain privacy rights to specific forms of communication including electronic communication. The federal Electronic Communications Privacy Act of 1986 (ECPA) is found at 18 D.S.C. 99 2510-2520 and the Minnesota Privacy of Communications Act is found at Chapter 626A of the Minnesota Statutes. There are certain exceptions to the wiretapping laws that may allow an employer to monitor employee use of e-mail. For example, there is an exception that would most likely allow an employer to monitor employee e-mail if the employee gave prior consent to the monitoring. If a city has adopted a well-drafted policy relating to employee use of technology and the Internet, it will increase the likelihood that the city can claim that one of the exceptions to the wiretapping laws applies. 2