295. "Some Privacy, Please, For E-Mail," New York Times, (November 23, 1997), p. 12, Sunday Business Section. (Also Published: "The First Amendment is Not an Absolute Even on the Internet," Journal of Information Ethics, (Fall 1997), pp. 64-66.
An employee's right to E-mail privacy has little or no legal foundation. Various courts have ruled that neither federal nor state constitutions provid provicy protection regardin E-mail in the workplace, and only a few states have passed laes that specifically protect employees' E-mail messages. In general, office e-mail is no more protected than employees' telephones which are fair game, given proper warning by the employer.
In fact, many corporate policies warn employees that E-mail is about as private as making a personal call over a speaker phone in a crowded office. At employee orientations KMart, new workers are told that personal use of e-mail could result in dismissal.
And many employers haven't shied away from exercising their right to examine workers' e-mail. While statistics differ, various surveys agree that more than a third of corporations regularly monitor their employees electronically, which generally includes E-mail spot-checks. (The actual number may be higher because not all executives are likely to be candid when questioned about surveillance practices.)
Recently, large companies have also employed new software, like Assentor or Spyglass Surfwatch, that allows them to screen large numbers of messages without actually reading them. The software detects certain key words that hint at behavior the company is seeking to control, then retrieves those messages for perusal.
Aside from exercising what they consider to be their legal right, corporations rationalize eavesdropping on other grounds. Surveillance, they argue, is needed to insure that productivity is maintained, that trade secrets are kept, that crimes are not committed on their premises, and that employees do not use E-mail to harass one another.
(In a case that was dismissed last summer in Federal court, Morgan Stanley was sued by black employees who contended that a hostile environment existed at the firm because a racist message was sent on the E-mail system. Chevron agreed to a settlement with four female employees who contended that sexist joles, circulated via the company's computer system, were part of a pattern of sexual harrassment.).
Employees do have some recouse if their corporations have granted certain privacy right. But few companies have done so, and even then their workers must be willing to take their cases to court. Corporations, however, would be well advised to grant employees a measure of privacy. Companies are not merely places of employment, they are something of a community, too. "On the job" is where many employees form much of their social network, where they make friends and develop loyalties.
In the 1980's corporations were so worried about competing that they paid little attention to things like communal feelings or their employees' commitment to the workplace. But many companies have recently recognized that this corporate streamlining had rolled too far--that impersonal efficiency often is penny-wise but pound-foolish, that corporate interests may be better served by a happier labor force. Indicators of this progression include so-caled dress-down days, corporate retreats, and enhanced parental leave.
Popular fears about privacy violations, real or imagined, offer a particularly inviting opportunity for corporations to show support for workplace community. A granting of privacy rights at work can demonstrate this concern, especially if it comes as a gesture of genuine trust rather than a step required by law.
The details matter less than the sentiment behind them, but some options come readily to mind. Employers, for example, could provide employees with a bloc of expressly private e-mail terminals--perhaps equipped with encryption software. Or companies could stipulate that messages preceded by a code word--or all messages to an employee's sent home--will not be screened unless there is evidence from some other source that a crime has been committed or a corporate policy has been violated. The employee might even declare a maximum number of private messages.
Other avenues may well be found, but companies first need to accept a basic point: that even if they aren't required to provide their employees with E-mail privacy, it would be more communitarian, and possibly profitable, to do so.
Amitai Etzioni is director of the Institute of Communitarian Policy Studies at George Washington University and most recently author of The New Golden Rule: Community and Morality in a Democratic Society (New York: BasicBooks, 1996).