HOWARD FINAL 2/4/2009 1:11:07 AM 511 INVASION OF PRIVACY LIABILITY IN THE ELECTRONIC WORKPLACE: A LAWYER’S PERSPECTIVE Christine E. Howard∗ INTRODUCTION Electronic technology in the workplace is changing rapidly, and those changes are generating new and distinct challenges for employers seeking to increase productivity and minimize disruptions to employees. Some of the issues facing employers are defensive in nature: protecting the company’s systems against intruders, preventing excessive use of electronic resources for non-business purposes, and stemming improper communications by company personnel. Other issues involve decision concerning whether to take action against those who are abusing the company’s systems or who are engaging in defamation against the company on outside websites or blogs. Many employers closely monitor employee tardiness, while much more time is likely lost due to employees’ personal e-mails, cell phones and access to non-business websites. Employers may be equally or even better served by monitoring employees’ use of electronic resources than by monitoring their arrival time. According to one report involving the most recent electronic avenue to express views, blogs, nearly 80,000 new ones are created every day.1 There are 14.2 million in existence already, fifty-five percent of which remain active.2 Some 900,000 new blog postings are ∗ Ms. Howard is a partner with the Atlanta, GA office of Fisher & Phillips LLP. Ms. Howard has been selected as a “Georgia Super Lawyer” for “Labor & Employment” since 2004, and for “Employment Litigation: Defense” in 2007. Ms. Howard received her J.D. from Emory University School of Law with Distinction. The observations expressed are that of the presenter/author and not that of Fisher & Phillips or any of the firm’s clients. 1. Dave Sifry, State of the Blogosphere, Aug. 2005, Part 1: Blog Growth, TECHNORATI, Aug. 2, 2005, http://www.technorati.com/weblog/2005/08/34.html. 2. Id.HOWARD FINAL 2/4/2009 1:11:07 AM 512 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 25:511 added each day.3 Some of those blogs are highly critical of an individual’s employer or former employer, while others are merely a diversion from work.4 A survey recently found that seven percent of U.S. internet users—more than eight million people—write blogs.5 Another survey found that three percent of respondents had disciplined or fired employees for their blogging activities in the past year.6 The number and availability of blogs make them a central concern of employers. This article will first explore the limitations on employers in monitoring their employees’ use of electronic resources, and then conclude with precautions employers can take to minimize the risks involved with technology used in the workplace. I. LEGAL LIMITATIONS IN AN ELECTRONIC WORKPLACE A. Federal Wiretap Act The Federal Wiretap Act7 generally prohibits the interception, disclosure or intentional use of wire, oral or electronic communications, including those that occur in the workplace.8 A “wire communication” is defined as one that carries a person’s oral communication over a wire, such as a phone call, and includes the “electronic storage of such communication.”9 An “oral communication” occurs when the individual uttering the communication expected it would be a private conversation.10 An “electronic communication” is the transfer of information (writing, images, signals, sounds, data, etc.) transmitted by electronic means including radio waves, but is not an oral or wire communication.11 E-mail, pagers, and cell phone usage are examples of 3. Dave Sifry, State of the Blogosphere, August 2005, Part 2: Posting Volume, TECHNORATI, Aug. 2, 2005, http://www.technorati.com/weblog/2005/08/34.html. 4. See, e.g., Wal*Mart Sucks’ Journal, http://community.livejournal.com/walmartsucks (last visited Apr. 4, 2006); Wasting Time Blog, http://msquare2.blogspot.com (last visited Apr. 4, 2006); see also Sifry, supra note 3 (discussing trends in blog activity, with the greatest activity being during the week, especially in the few hours after work begins). 5. LEE RAINIE, PEW RESEARCH CTR., THE STATE OF BLOGGING 1 (2005), http://www.pewinternet.org/pdfs/PIP_blogging_data.pdf. 6. Nancy Flynn, Blog Rules, LEADER’S EDGE (Am. Mgmt. Ass’n), May 2006, http://www.amanet.org/LeadersEdge/editorial.cfm?Ed=269. 7.18 U.S.C. §§ 2510-2522 (2000). 8. See 18 U.S.C. §§ 2510-12. 9. 18 U.S.C. § 2510(1). 10. 18 U.S.C. § 2510(2). 11. 18 U.S.C. § 2510(12).HOWARD FINAL 2/4/2009 1:11:07 AM 2008] INVASION OF PRIVACY LIABILITY 513 “electronic communications.” “Interception” is the aural or other acquisition of the contents of any oral, wire, or electronic communication, through the use of any electronic or mechanical device.12 For example, intercepting a call with a tape recorder connected to a switchboard without an employee’s knowledge is a violation of the Act. However, merely listening to an allegedly illegally-obtained audiotape of private telephone conversations is not a violation of the Act. The Act provides an exception for employers who act in the “ordinary course of business.”13 This exception allows an employer to electronically monitor, using a telephone extension, any business-related communication without the employee’s knowledge or consent.14 An employer may not, however, monitor communications of a purely personal nature.15 An employer does not violate the Act if it terminates electronic monitoring immediately upon discovering that the monitored call is purely personal.16 The Act also does not apply if the employer has the consent of one party to the communication, unless the communication is intercepted for the purpose of committing a criminal or tortuous act.17 Consent by one of the parties may be either express or implied.18 Finally, under the “provider” exemption, telephone companies and other employers that provide wire communication services may monitor calls for service checks.19 The Act provides a civil cause of action to anyone whose communications are unlawfully intercepted.20 Successful plaintiffs may recover actual or statutory damages ($10,000 or $100 a day for each day of violation, whichever is greater), punitive damages, and attorney’s fees.21 The Act also makes the unlawful interception, or the attempted interception, of an oral, wire, or