Constitutional rights and protections

Constitutional Rights

Constitutional Law: Is the company e-mail protected under the employee's right of privacy?

Analyze the impact of two U.S. Constitutional rights on a business and an employee of that business

Although the Constitution is a document nearly as old as this nation, America's courts have been faced with increasingly complex questions about what sorts of rights are protected at work when people use the vehicle of e-mail to express their thoughts. Consider the right to privacy, and the expectation of attorney-client privilege in the case of "Asia Global Crossing, Ltd., et al." (322 B.R. 247, Bankr. S.D.N.Y., March 21, 2005). In this case, the court held that the use of a company's e-mail system by an employee to send personal e-mails to the employee's personal counsel did not waive any attorney client privilege by using such a system. Whether a waiver of the employee's right to privileged speech had occurred was resolved by examining the employee's subjective and objective expectations that the communications was confidential and the reasonableness of an employee's expectation of privacy when sending e-mails at that company the court deemed there had been no waiver ("Asia Global Crossing, Ltd., et al." 322 B.R. 247, Bankr. S.D.N.Y., March 21, 2005).

Officers of Asia Global Crossing had sent personal e-mail over AGC's company e-mail system to their personal, private legal counsel. AGC filed for bankruptcy protection and an investigating trustee sought to see these emails, as they were still on the company's e-mail servers. The independent trustee tried to compel the employees to produce these e-mails, but the employees said they were privileged. The trustee said that by using the company e-mail, the employees had no right to expect that their right to privacy and to attorney-client privilege would be observed. "The Court found support for this conclusion in New York and California statutes that provide that 'a privileged communication does not lose its privileged character for the sole reason that it was sent by e-mail or because persons necessary for the delivery or facilitation of the e-mail may have access to its content'," and by applying Federal Law, the Court held that for a communication to be privileged, the party claiming privilege must establish he or she "subjectively intended it to remain confidential," and that "under the circumstances, [the communication] was reasonably expected and understood to be confidential" ("Asia Global Crossing, Ltd., et al." 322 B.R. 247, Bankr. S.D.N.Y., March 21, 2005).

Because AGC never monitored employee e-mail or gave employees reason to suspect they were being monitored over email, the employees had a subjective right to privileged communication with their attorneys and a right to privacy and under the circumstances they had a reasonable expectation of confidentiality.

However, this does not mean that all employee e-mails are protected; only if the company does not openly monitor employee email and inform employees they are being monitored, there is a reasonable expectation of confidentiality. For example in "Bonita P. Bourke, et al. v. Nissan Motor Corporation in U.S.A.," (California Court of Appeals, Second Appellate District, Case No. B068705, July 26, 1993). The plaintiffs said the company's review of e-mail messages over a company system constituted an invasion of their right of privacy in violation of both the California Constitution and common law. But the court found that plaintiffs lacked a reasonable, objective expectation of privacy that their sexual and explicit e-mails would be private, because the company had given them notice e-mail could be reviewed without their knowledge or consent.