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April 17, 2009, Newsletter Issue #110: ECPA - Electronic Communications Privacy Act

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Tip of the Week

The Electronic Communications Privacy Act of 1986 (ECPA) directly prohibits the interception of e-mail transmissions. The ECPA prohibits the interception by:

Unauthorized individuals or Individuals working for a government entity, acting without a proper warrant. The ECPA is mostly concerned with the unauthorized access by employees or corporate competitors trying to confiscate important information. However, while there are no constraints in the ECPA for an employer to monitor the e-mail of employees, the ECPA does not specifically exclude employers.

Employees often believe that their communications are private because they have a password which they can select and change on their own or because they’re communicating through outside common carriers such as web-based email or chat applications. Cases have often turned upon whether this belief was reasonable given the fact that the employer had the ability all along to access the files, though the employees were not aware of this. In determining the outcome, courts will weigh the reasonableness of the employee's expectation of privacy against the business interest of the employer in monitoring the communication. However, it is important to point out that in the final study courts have commonly held that legitimate business interests allow employers to intercept communications.



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