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The restrictions in the Fourth Amendment apply only against government employees but do not restrict the activities of private employers or individuals. The Supreme Court has held that electronic listening by a government agency against its employees violated the Fourth Amendment only when the individual had a reasonable expectation of privacy.6 In a military setting, in which security measures were extremely tight, the court held that the expectation of privacy that an engineer had in materials kept in his desk was not objectively reasonable.7

How does the standard of a reasonable expectation of privacy for government employees apply to computer-related material? In Williams vs. Philadelphia Housing Authority, Williams, an attorney with the Philadelphia Housing Authority, alleged that his supervisor violated his Fourth Amendment rights by removing a computer disk from his desk while he was on leave. The disk contained Housing Authority documents written by Williams as well as personal items. Williams had been told to clear his desk before he went on leave.

The court decided that Williams did not establish a claim for unreasonable search and seizure. By retrieving the disk, the supervisor acted in her official capacity. Because the disk contained both work-related and personal documents, the court concluded it was reasonable that the supervisor reviewed the personal material in her search of official documents.

ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

The Electronic Communications Privacy Act of 19868 (ECPA) addresses unauthorized surveillance of E-mail by parties outside the government. ECPA provides criminal sanctions for unauthorized access to electronic communications. It also restricts the actions of service providers when they handle information contained in stored messages. The ECPA makes it a federal felony to intercept, disclose or use an electronic communications that is being transmitted. Exceptions occur when:

  One party to the message (the originator, the addressee, or the intended recipient) gives actual or implied consent for another party to read the message.
  A government agency with a warrant or administrative subpoena requests the information.9
  The provider of service (network operator) accesses the message in the normal course of operations, specifically for mechanical or service quality control checks.

Most observers agree that an organization that develops a network specifically for its employees can monitor its employee’s communications and take specific legal action based on the contents of the message. An employee was recently dismissed for including inappropriate language and vulgar jokes in an E-mail message. Another employee was dismissed when his employer learned from E-mail messages that he had been previously employed as a stripper.

Both organizations and employees should understand their rights and responsibilities when E-mail is involved. Employees should realize that their personal and business communications can be electronically monitored in the workplace without specific notification. A potentially damaging or embarrassing message should never be sent on the E-mail network.

If an organization does choose to monitor messages, the following guidelines should be established:

  Monitoring should be conducted only for a short period and only for a specific purpose. Such actions should be considered only in extreme circumstances and should only be used when no other viable alternative exists.
  Information and documents gathered should not be used for any other purpose. Employees should not be disciplined for using E-mail for nonbusiness-related messages.
  The procedures used should conform with legal requirements. In addition, they should be conducted in a manner consistent with the terms of the organization’s employee handbook.

The organization should realize that routine monitoring of employee messages can have a devastating effect on employee morale. If employees are concerned about the privacy of their E-mail, they will simply stop using the system. As a result, an expensive and crucial investment in the network will not fulfill its function, and the organization will not receive the many benefits of E-mail.

Both organizations and employees should be aware that E-mail messages are discoverable in legal proceedings. This means that such messages can be subpoenaed and presented as evidence in court. Employees and organizations should be aware that a backup of existing E-mail is taken regularly on a regular basis, so that deleted messages are retained indefinitely when the computer system is backed up nightly. Individuals should not write anything on E-mail that they would not say or write publicly.

LIBEL

The Internet is a public network available to any person who has access to a computer and a modem. Anybody can log on to the Internet and send messages to other users. Control of Internet messages is more difficult because users can hide their identities by using false names.

Libel is a written, printed, or pictorial statement that damages a person by defaming his character or reputation, damaging him in his occupation, or exposing him to public ridicule. In the real world, freedom of speech is limited by the laws of libel. To date, the few libel suits involving electronic services have been settled out of court, so little legal precedent exists.

Can a network be held liable for a libelous message sent by a subscriber? In Cubby vs. CompuServe,10 the Plaintiff sued CompuServe because a third party had allegedly posted a libelous message on the CompuServe network. The court ruled that CompuServe could not be sued for libel. Networks do not exercise editorial control over the messages that they transmit.

Although the matter has not been decided in the courts, it appears that an individual could be held liable to sending libelous E-mail messages. An article in The Nation states, “the Internet is not a free space when it comes to libel; it is subject to the same libel law as any publication.”11

FRAUD

The increasing popularity of the Internet and its bulletin boards has led to new methods of conducting old fraudulent activities. A New York Times article announced, “the scammers, swindlers and sharpies who hunt for unwary investors on the phone and through the mail are now prowling online computers services. But in cyberspace, where the police are few and dubious offers can be sent for under $2, such chicanery carries special twists.”12

In one specific case, a posting on a Prodigy bulletin board claimed that E.T.C. Industries, an electric car company, was “primed for breakout”.The note omitted the fact that its author was doing public relations for the company and was the son of its president. The Commissioner of Securities in Missouri issued a cease-and-desist order against E.T.C.


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