Court Says Personal Email From Work Can Still Be Protected Attorney-Client Communications

from the well-that's-interesting dept

Tue, Dec 15th 2009 1:52am — Mike Masnick

We've seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work, and therefore cannot protect those emails. However, in an interesting new ruling (found via the EFF), a court found that personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.

Of course, there's a bit more to this case that makes the facts a bit different and makes me wonder if it would apply in other circumstances. In this case, it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn't a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense. The attorney-client privilege should be seen as one that has an incredibly high barrier. Any weakening of that privilege -- such as by saying that if you email your lawyer from work, it doesn't exist -- would be troubling. But what would be more interesting is what would happen in a lawsuit where it was the employer looking at the material. If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.

In related news, however, the Supreme Court will be hearing a case that looks at whether or not your text messages are private, even if sent from company mobile phones.

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Filed Under: email, privacy, text messages, work

7 Comments

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DS78, 15 Dec 2009 @ 5:32am

Unspoken rule?
Don't use company resources for personal communication. Every company I've ever worked for (I'm an IT guy) has a similar policy. Basically any thing accessed/created/sent on company resources like the PCs, network infrastructure, mobile devices, etc. is being or can be tracked and recorded. It also requires empoyees signature.

If dude wanted to blow the whistle on someone he should have done it in person.
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BobinBaltimore (profile), 15 Dec 2009 @ 5:41am

Interesting but not Generally Applicable
Mike, very interesting case, but I agree with you that it is likely not applicable to general corporate doings. I have been AMAZED at the personal crap people run across corporate messaging systems and store on file servers. When a company bumps into that during the course of, say, implementing a litigation-related data hold or investigating an HR complaint, it just creates problems for everyone involved. I doubt the attorney-client argument would hold much water if the discovery by corporate folks was an incidental result of legitimate activity, especially if the company has a good acceptable use and information security policy.

I am curious about this comment: "If a company has a regular program of recording and examining employee email (as many do)..." Where do you get this impression that "many" companies "regularly" examine employee email? Record it, yes, though a better term is "archive" which is a legal requirement in many regulated industries. But examine content? Sure there are products that do automated compliance checks for PCI, HPPA, etc, but I don't think that's what you mean (and it's not the impression you leave). Do you really think companies have multitudes of email admins and lawyers just randomly combing user email, trolling for whatever they can find? Of course that HAS happened, but "many" and "regularly?" Definitely contrary to what I've observed in my Fortune 500-ish company career.
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Mr RC (profile), 15 Dec 2009 @ 6:24am

emai scanning
At the company I work for (and the previous one as well) anything done on company machines, becomes company property. Email is scanned for key words, as email sent from the company account is considered 'representing the company'. Texts and calls from a company phone, are free for scrutiny, as it is a company number.

Use a free web based email service (ie Gmail), remote your computer at home and send from there if your personal account requires a client (though I can't think of any ISP's these days that don't have web based email), or text/call from your personal phone.. and you can't be touched without a court order.. unless you (stupidly) hand over the details on request..

That's how it works here, I'm the IT Admin.. and you wouldn't believe the stuff I find... even called the cops once for child porn, they tried to claim invasion of privacy, but the images were stored on his issued company machine, and unfortunately in the backups as well (was a pain to clean them out) he didn't have a leg to stand on..
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shanoboy (profile), 15 Dec 2009 @ 7:10am

web based email
I wonder about this all the time. I log into Gmail with an encrypted connection (https). So if I send personal email from here, I'd hope that its off limits and they can't see it, but on the other hand... is it really?

If IT take a screen capture or grabs some key strokes from a personal email, I guess its technically not off limits.
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sam, 15 Dec 2009 @ 8:08am

employee or employer, not always simple!!!!
As an IT Consultant, I have found that every law has its faults. about 10 years ago, one of the companies I worked for, decided to include email as a company resource; few weeks later, we were getting complaints and lawsuits threats from employees who claim harassment and stress from email {spam) that contain undesired and explicit photos, etc... Bottom line, there are employers who are too controlling, and then, there are employees who abuse of company resources.
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Paul (profile), 25 Feb 2010 @ 11:20am

Word your employment contracts carefully
Long before these issues because common, even before office email was common, I had to sign employment contracts that explicitly stated any works, inventions, and so on created by me on the premises during business hours using company facilities and equipment were the sole property of the company, with no exclusions. Even as a summer student this was an absolute requirement. Any correspondence constitutes a piece of work, therefore by extrapolation those ancient contracts cover email written on company computers using company accounts. One could even legitimately extend this to emails written on company time, using a company computer, but sent from the employee's personal webmail. Bottom line, if you are writing personal emails from work, expect there to be issues, and don't expect privacy.
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