Recently, Michele Catalano an internet journalist who writes for something called DeathandTaxesmag.com started a firestorm this week when she claimed that her home had been invaded by the FBI because of Google searches over the phrase “Pressure cooker.” “This is where we are at,” Catalano wrote. “Where you have no expectation of privacy. Where trying to learn how to cook some lentils could possibly land you on a watch list.” Except, that’s not what happened.
After the FBI and the Nassau County Police Department (whom she next blamed) both denied having any idea what she was talking about, Suffolk County police explained what happened: Suffolk County Criminal Intelligence Detectives received a tip from a Bay Shore based computer company regarding suspicious computer searches conducted by a recently released employee [Catalano’s husband]. The former employee’s computer searches took place on this employee’s workplace computer. On that computer, the employee searched the terms “pressure cooker bombs” and “backpacks.” After interviewing the company representatives, Suffolk County Police Detectives visited the subject’s home to ask about the suspicious internet searches. The incident was investigated by Suffolk County Police Department’s Criminal Intelligence Detectives and was determined to be non-criminal in nature. The tempest in the teapot (or pressure cooker) was over. It was not the Obama administration secretly reading every internet search in the world, it was simply a guy who decided to research “pressure cooker bombs” and “backpacks” on his work computer. Not Big Brother, Big Idiot.
But Catalano’s jumping of the gun leads to worthwhile discussion. What right does your employer have to look at your emails and internet searches? Every right in most cases. Most mid to large employers have a written policy letting employees know that their IT department can and will be monitoring their internet activity and regulating what can be done on the office computer. When searching the internet on your work computer, you will rarely have any expectation of privacy as you are not communicating with anyone but merely using a web browser to search for information or media. I have given the green light to many employers who have called me for advice on whether they can see what their employees are doing on the internet during work hours. The trickier issue revolves around emails.
The basic rule was set forth in In re Asia Global Crossing, Ltd., 322 B.R. 247, 258-59 (Bankr. S.D.N.Y. 2005). In that case the court established a four-part test to determine if an employee has an expectation of privacy in work emails:
(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
This test showcases the importance of having a clear email policy in an employee manual and of employees being aware that they usually have no expectation of privacy at work. Corporations that may want to investigate their employees for internal fraud or other irregularities could find their investigations thwarted if a court were to rule that their employees had an expectation of privacy in their own emails. How many employees actually take the time to read the entire employee manual when they come on board at a company? Well those that don’t are in for a shock when they find that what they thought were private communications to their spouses or others were in fact the property of their employer. Even if the company does not have a manual, if the employee was aware that the emails maybe monitored, that could be sufficient notice. For example, if an employer required every employee to give them their email password, that could be enough to alert employees to the possibility that their boss may be reading their emails. The best rule of thumb for employees is do not use a work computer to send sensitive emails. The advent of smartphones makes it easier for workers to use those devices for personal communication and the office computer for work-only correspondence.