The eyes have it: At work, e-mail can be for many to see

Kirk Baird

Monday, Nov. 5, 2001 | 8:28 a.m.

In 1948 George Orwell wrote his chilling tale of an all-seeing, all-knowing government, "Big Brother," which monitored the lives of all citizens.

In selecting a time for his dim view of the future, Orwell inverted the last two digits of 1948, which he then used as the title of his book, "1984."

As frightening and, at times, eerily prophetic as the novel remains, there have been many technological advances in the 17 years since the year of the novel's setting among them e-mail.

At first a tool for the academic and computer-geek set, e-mail has become an almost everyday necessity for most Americans especially at work. It provides nearly instant correspondence and is often preferred over its postal cousin, "snail mail."

Although there is no accurate way to count the number of daily e-mails sent and received in the workplace, according to the FBI the count is easily in the millions.

With the anthrax scare affecting the nation's postal system, that number is likely to increase, as e-mail appears to be a safer method of correspondence than snail mail.

But before you sit down at your desk and fire off an e-mail to a co-worker about company politics, forward a new "blonde" joke to a friend or even correspond with a spouse about weekend plans, consider: What you're gaining in safety and convenience by writing e-mails at work, you could be giving up in security.

In fact, according to a 2000 survey released by the membership-based American Management Association, 73.5 percent of companies polled nationwide engage in electronic monitoring and surveillance of e-mail, compared with 67 percent in 1999.

And International Data Corp., an industry analysis group, estimates that in 1999 businesses spent $62 million worldwide on Internet monitoring and filtering software, which includes the ability to read e-mail. By 2005 IDC estimates that amount will reach $561 million.

In other words, Big Brother is alive and well in the servers of many companies.

But is such surveillance legal? Does a company have a right to monitor its employees' e-mail? "Ultimately, yes," said Patrick Hicks, managing partner of Hicks and Walt, a Las Vegas law firm that, in partnership with Littler Mendelson, represents companies in labor-management concerns.

Just as courts have allowed employers to conduct drug tests, background checks and screenings of potential employees, Hicks said businesses also have a right to monitor and review e-mails written on company time, with company equipment -- as long as workers are made aware of the practice.

"Courts have not said companies must have a written policy," he said. "But in recent decisions it's clear that's the advice."

Additionally, Hicks said, in case rulings courts have suggested it is necessary for businesses to ensure workers understand e-mail policy and that the practice is enforced.

Failing to do so, he said, then creates a false expectation of privacy for employees.

"If you have a company locker and the company tells you it's going to conduct locker searches, and it conducts them regularly, you have a low expectation of privacy. If the company has no policy or never conducts searches, you have a high expectation to privacy," Hicks said. "It's the same with e-mail."

Personal property?

An employer's right to monitor messages sent from the workplace extends beyond interoffice communication to include personal e-mail accounts, he said, such as those offered through AOL, Yahoo! and Microsoft.

That means any electronic message sent during company time on company equipment is ... well, company property.

Not surprisingly, Allen Lichtenstein, general counsel for the American Civil Liberties Union for Nevada, disagrees.

In Lichtenstein's opinion, an employer has the right to monitor interoffice e-mail correspondence on a company account when it is created or sent on company equipment.

But when it's an e-mail written on a personal account -- even at work -- the employee's right to privacy is still in effect.

"Does a company have the right to a letter to your mom if you use company stationary to write it while on company time? No." Lichtenstein said. "You can be fired or sanctioned for writing a personal letter during business time, but they have no right to your personal correspondence -- e-mail or otherwise."

Unless, he said, an employee signs an agreement stating otherwise.

"If you make an agreement when you sign up to work, it's sort of signing away any right you have to privacy," Lichtenstein said. "You could be strip-searched each time you entered the (office) building if you agreed to it."

The idea of having work e-mail monitored by her employers is a minor concern for Cammie Buerry, 36, a Las Vegas advertising executive. But it's not because she's worried a negative message about a co-worker might end up in the wrong hands.

"If I were going to say derogatory comments about my work or co-workers, I wouldn't do that on my computer at work," she said. "I would never do that and have never done that."

In reality Berry is concerned her office may have legal access to e-mails she sends to friends and family from her personal account -- even though she only writes them during breaks or at lunch.

"I would always wonder if they would have a way of tracing that," she said. "But if I want to send a letter or to my mom or a friend or whatever, I'll still do it. I'll just watch what I say."

Legal issues

So why would an employer go to such great lengths to monitor inter- and outer-office e-mail correspondence in the work place? Money.

In the last few years several big businesses have lost cases -- and paid millions in damages -- because of interoffice e-mail.

Some of the judgments were a result of pornographic pictures distributed through interoffice e-mail. Others involved racist jokes that were also electronically passed around.

In one instance, an age-discrimination case filed by an older woman was on its way to dismissal for lack of evidence when an e-mail retrieval specialist located a deleted e-mail. In the note sent by the company's president to the head of personnel, he urged the supervisor to fire the woman, whom he referred to using a derogatory term.

The case was subsequently settled for $250,000.

"Judges have ruled that companies assume certain liabilities over what their employers do with the technology," Hicks said.

As a result, a new corporate position has been created: Chief Privacy Officer, which U.S. News and World Report has listed as one of the top positions for 2001. The role of the CPO is simple: monitor the increasing role of technology in the work- place and how it relates to the right to privacy.

A job description that should include educating employees about the "long-lasting nature" of e-mail, Hicks said.

"Even though it seems a conversation is more private or personal than passing notes back and forth, it isn't," he said. "And that's particularly true since e-mail can be retrieved even after the user deletes the messages."

With that in mind, Hicks offers simple advice to workers with e-mail access.

"If you're using company technology for communication during business hours," he said, "don't write anything you wouldn't want to read" in the newspaper.

Or, as Lichtenstein put it: "The best policy is to keep your work life at work and your personal life outside of work. Different companies have different rules. Make sure you know what the policy is."