Re: [MLUG - DISCUSSION] Employee Privacy, Employer Policy

[Stephen Montgomery-Smith <EMAIL:PROTECTED>]

Mike Miller wrote:
> On Fri, 3 Nov 2006, Stephen Montgomery-Smith wrote:
>
> > Jerry Gamblin wrote:
> >
> > > This article looks at two recent court cases where a government 
> > > employee's reasonable expectation of privacy was more important than 
> > > the employer's ability to read any employee's e-mail - despite a 
> > > privacy policy that clearly stated any company e-mail can, and will, 
> > > be monitored.
> > >
> > > http://www.securityfocus.com/print/columnists/421
> > >
> > > So what does this do to most acceptable use policies? Does it make 
> > > them useless if even a military AUP won't stand up in a military court?
> >
> > I quickly looked at the military case.  While I completely agree with 
> > you that this is a bad decision, I can understand the legal quagmire 
> > that they were in.  The computers were searched by the military 
> > police, and there is a sense in which they are not acting as the 
> > employer, but as the police force. As such, they are held to a higher 
> > standard whereby they have to get search warrants, etc, etc.  I have 
> > heard it said that difficult legal cases lead to bad law.  Of course I 
> > am not a lawyer, but I am guessing that this is one of those situations.
> >
> > But overall, I do see the point you are trying to make.
>
>
>
> > From the article:
>
>
>   "the banner relied upon by the military judge to find no privacy
>   expectation may have limited [Long's] expectation of privacy with regard
>   to non-law enforcement monitoring of the computer system, but that the
>   seizure of the e-mails in this case was for law enforcement purposes."
>
> It seems to me that an employee who knows that his employer might read 
> his email will be writing better emails (at least better from the 
> perspective of the employer), but that's about all the good it does the 
> employer.  If an employee knows his messages can be read, how many 
> messages about criminal activity is he going to write?  The legal issues 
> don't seem very important to me, partly for the reason just stated, but 
> also because it is clear that an employer can have a policy that he may 
> read emails, and if he does so with some regularity, there will be no 
> "expectation of privacy" and no problems in court.  If the employer goes 
> for years without reading a message, an expectation of privacy might be 
> claimed.  So, note to employers: read more emails!
>
> Mike

I see it differently.  If an employer is reading the emails (and whether 
he does this regularly is not the issue), and then finds that the 
employee is doing something illegal, and then voluntarily gives the info 
to law enforcement, and then based upon that info the law enforcement 
gets a search warrant and looks at the email, then I think it is all 
perfectly fine.  The difficulty in this military case is drawing the 
line between the employer and the law enforcement, who are both working 
for the military.  But if they had set up some kind of legal wall 
between the two groups, this would not have been a problem.

I think what this quote is saying is, that if the military police had 
been regularly reading the emails, then this also would have worked 
against the employee.  Personally I don't think it is a good argument.

Overall, I do think that this case illustrates that (a) the law is 
screwed up and (b) this judge wasn't completely all there.  But that is 
my opinion.

--

Stephen Montgomery-Smith
EMAIL:PROTECTED
http://www.math.missouri.edu/~stephen

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