A new federal court ruling warns some employers that there’s no more “open season” on accessing employees’ e-mail.
The warning came in a case involved the city of Ontario, CA, which took disciplinary action against an employee who was charged with using the employer e-mail system to send and receive sexually explicit material.
The employer had collected the damning e-mails and presented them as evidence to support the discipline.
However, the employee found a loophole in previous rulings that said employers owned any e-mails sent and received on the employer’s system: The system wasn’t owned by the employer; it was operated by an outside contractor.
So, even though the employer paid a fee for the system, the court said, it didn’t own the system, meaning all e-mails on the system had 4th Amendment protections against illegal search and seizure and such e-mails are protected by the federal Stored Communications Act (SCA), which prohibits providers from divulging the contents of any communication that is maintained on the service unless the request is accompanied by search a warrant.
The research firm Radicati Group says about 28% of employers use an outside vendor for e-mail and are subject to the access restrictions cited in the 4th Amendment and the SCA.
