Email Monitoring in the Workplace
Conceptions of Privacy
Privacy can be defined as a way of drawing the line at how far society can intrude into a person’s affairs (Banisar, 2000). Wikipedia defines it as the ability of an individual or group to keep their lives and personal affairs out of public view, or to control the flow of information about themselves. Simply it can be described as one’s right to have a private life, to be left alone and to be able to decide when one’s personal data is collected, used or disclosed. Personal data includes any information that can be used to identify, contact or locate you. It is the violation of an expectation of confidential information disclosed in a private place being unveiled to third parties. The Australian Privacy Charter provides that “privacy is a value which underpins to human dignity and other values such as freedom of association and speech. It is a basic human right and the reasonable expectation of every person.”
In the case of R v/s Dyment, the Supreme Court of Canada tried to understand the term privacy by breaking it into different categories. The three zones of privacy have been defined as those involving territorial or geographical aspects, person related aspects and information related concerns. In this paper, we are mainly concerned with information privacy which relates to confidentiality of information about individuals. Alan Westin defined privacy in this context as ’ the claim of individuals, groups or institutions to define for themselves when, how and to what extent information about them is communicated to others’. The main concern summarized here is that employees may be denied the opportunity to define what extent of personal information about them is communicated to their employer.
Surveillance technology is not a new issue. In the past video cameras and wiretaps had left all in fear of personal privacy. What is more feared today is the breakthrough of IT, especially the surveillance technology. Balancing the fear of technology and privacy has long been a concern and a challenge for both businesses and legal authorities. In terms of e-mail privacy, Harris quoted, “What protected us, to an extent, in the past, was a wall of paper… Now electronic communication allows that wall to be penetrated very easily”.
 Banisar, D. (2000) “Privacy and Human Rights 2000: An International Survey of Privacy Laws and Development”, Privacy International.
 Wikipedia (2007) “Privacy”.
 The Australian Privacy Charter Group, Law School, University of New South Wales, Sydney, Australia, (1994) The Australian Privacy Charter.
 Westin, A. F. (1967) “Privacy and Freedom”. Bodley Head, London.
 Dunn, A. (1996) “Think of Your Soul As a Market Niche”. The New York Times, 11 September
Electronic Communication and Privacy
The ubiquitous nature of IT makes it present everywhere and is alert every minute watching, recording and evaluating employees. Electronic mail is a technology used for communication that was developed along the evolution of the Internet. The Radicati Group statistics in 2006 estimated the number of e-mails sent per day to be around 183 billion by about 1.1 billion users worldwide and 1.4 billion active accounts, making it one in six people on earth using e-mail. This as compared to 1991 where e-mail users were estimated at 12 million has been a huge rise. Due to quick and efficient communication, e-mail has become popular replacing both phone and postal mail (Schnaitman, 1997).
E-mail is an effective communication means for both business and personal use. Quick (mass) communication within seconds, convenience with managing and sending of mail at any particular time and negligible cost are the rationale for its success. However like any other technology it has its drawback too. The biggest disadvantage being that e-mail, as most believe is not private.
The increased reliance on technology has created new privacy issues. The fear of employers that employees could easily transmit confidential information and documents to others or use company e-mail for personal, rather than business correspondence has led to exercising control over employee e-mails. This in recent years has caused a lot of controversory of how much control can employers exert of employees privacy.
Klegal’s survey in 2002 claimed that the biggest workplace issue faced by UK employers was disciplining staff over the internet and e-mail. The American Management Association, in an annual survey claim that 84% respondents have a written policy for e-mail use, and 81% for Internet use; 24% have e-policy training programs, an additional 10% plan one and 15% have been involved in some kind of legal action concerning employee use of e-mail and/or Internet connections.
 Radicati Group (2006) The Radicati Group, Inc. “Releases Q3 2006 Market Numbers Update”.
 Schnaitman, P. (1998) “Building a Community through Workplace E-Mail: The New Privacy Frontier”. Michigan Telecommunications & Technology Review.
 Klegal (2002) “E-Surveillance – the facts and figures”, Personnel Today.
 American Management Association (2005) “Electronic Monitoring & Surveillance Survey: Many Companies Monitoring, Recording, Videotaping—and Firing—Employees”.
Efficient Workplaces vs. Employee Privacy
The organisational conflict between the employer and employee views is that the employee views e-mail to be confidential and private whereas employers term e-mail as a company resource and thus believe they should be allowed to monitor it. Legally, such cases have been arbitrated on a case to case basis. As employers consider information resources as company resources, they grant themselves the rights to invade their employee privacy by monitoring their e-mails or communication. The main reason given for this surveillance is to ensure no misuse of company resources occurs.
However this intrusion is resented by employees. A lot of times naive employees are not even aware of the fact that their confidential correspondence is read by someone other than the sender and receiver. This assumption is faceted by the increasing number of legal cases that are filed by employees. Often the point raised by employees is that unless personal e-mail is conflicting with the business, it should be allowed. However surveillance may sometimes prove to be advantageous to employees as productive and well performing employees can be identified and rewarded. Next is that privacy is a desirable clause and a moral right of all individuals which should be respected by others.
Employers are justified as ethically employees shouldn’t be utilizing office systems for personal use during office hours. However, it is not wrong of the employee to hold a reasonable expectation of privacy. It is important to know where the line needs to be drawn between personal and official communication as a lot of times e-mails seem informal as employees say a lot of things which they would not mention in a letter and thus could be perceived as personal.
There is a very thin thread separating the conflict with lots of studies. Warren and Brandeis stated that determination of the line where dignity and convenience of the individual must yield to the demands of the public welfare or of private justice is a very difficult task. Waltemath suggested that a restriction should be placed on the length of personal e-mail messages. He also suggested the performance of the employee to be investigated. Magney claimed that employing does not mean the right to be monitored. Others have suggested limiting private conversation during office hours. Eventually its the issue of balancing the rights of individuals against the needs of the community.
Just like wiretapping or eavesdropping on telephone calls is illegal and ethically no employer should do so without the consent of the employee, similarly there is a need for e-mail to be regulated. If an employee wants to act in disfavor of the company, he can do so by telephone or personal meetings too. If the employer states that e-mail is company property and thus can be monitored, the rule should be applicable to company phone and other telecommunication mediums too. Similarly even though companies own bathrooms, they cannot install cameras to monitor ones usage. Simultaneously, the best way to limit the expectation of privacy for an employee is to introduce an e-mail use policy which details the level of invasion, leaving the employee no scope of doubt.
As David Flaherty, the Information and Privacy Commissioner for British Columbia said “surveillance technology is neither inherently bad nor good, but there is both good and bad surveillance.”
 Brandeis, L. & Warren, S. (1890) “The Right to Privacy”. Harvard Law Review, 4, 193.
 Waltemath, J. (2001) “Policing Cyberspace”, Advisor Today, 96, 114.
 Magney, J. (1996) “Computing and Ethics: Control and Surveillance Versus Cooperation and Empowerment in the Workplace”, in J. M. Kizza, ed., Social and Ethical Effects of the Computer Revolution (pp. 200-209), North Carol.
 Weckert, J. & Miller, S. (2000) “Privacy, the Workplace and the Internet”. Journal of Business Ethics, 28(3), 255-265.
 Information and Privacy Commissioner for British Columbia, (1998) Investigation P98 – 012, “Video Surveillance by Public Bodies: A Discussion”.
Employer’s Perspective on Deployment
Nearly 80% of all US companies keep a track of what their employees do by checking their e-mail, Internet activities, telephone connections and videotaping. This as compared to 1997, when it was 35% has been a huge rise. A survey by AMA has concluded that 24% of organizations have had employee e-mail subpoenaed and around 15% have gone to court to battle a lawsuit brought in by an employee e-mail. With such alarming sand rising statistics, it is interesting to know the rationale behind the investment of such technologies. Five reasons have been outlined below:
Ensuring confidentiality and trade secrets is a very important aspect of e-mail monitoring. A study by the ASIS and PWC claimed that Fortune 1000 companies sustained losses of more than $45 billion in 1999 from proprietary information theft. An example could be of a publicly traded company where the employer has to ensure that trade secrets and proprietary information are not leaked by employees for their benefit. Thus, sometimes e-mail may be monitored as a necessity and not only a right.
With the rise of hacking crimes and various terrorist attacks, e-mail monitoring is used by employers to uncover crimes and probable attacks. As Sinrod notes, “after Sept. 11, employers more than ever want to make sure that employees are not engaging in any type of criminal activity in the workplace and thus are engaging in various surveillance means.”
Employers often monitor employee e-mails to discourage them from wasting time on personal matters during office hours. A paper by Sinrod in 2001 concludes that over 75% of companies said that monitoring had helped them fight this. A counter effect on productivity would be failing of trust. Employees may feel that they are not trusted by their employers when such mediums of surveillances are used. Evidence also suggests that monitored employees have more chances of suffering stress, ill health and morale problems as compared to those who are not monitored. This may lead to loss of confidence and overall productivity loss. To avoid this, employers should inform the employees on the level of intrudation so that no expectation of privacy is held.
IT managers are forever struggling with bandwidth traffic slowdowns when employees download large files from the Internet. E-mail and Internet monitoring has been able to curb unnecessary downloads which are not necessary for the business. Instead of investing in greater bandwidth managers feel filtering and monitoring activities would be a cost effective solution.
To protect self from legal liability, employers usually monitor e-mail. A good example is of Chevron Corporation after a suit was filed for being harassed which was settled out of court for $2.2 million. The evidence was an e-mail message which was sent to the other employees within the firm via a joke - list. Chevron may have been able to avoid liability if they had monitored their e-mails and given employees notice of this surveillance. Other than this, there have been various cases of racial discrimination as well. In spite of monitoring, an online poll Vault.com states that 4% of employees still use work computers to receive pornographic related e-mails. They also claim that employees spend anytime between 10 minutes to an hour everyday to surf websites which are not related to their work. Another example was when Dow Chemical monitored employee e-mail and discovered 50 employees were using the company’s computers to store and send sexual images. All of these employees were eventually fired.
Difficulties in monitoring
However much an employer tries, it is difficult to monitor an employee completely due to work methods changing. With the increasing prevalence of take - work - home assignments, employers cannot monitor their employees and thus personal use cannot be identified. Also, with the evolution of e-mail, other means of communication like post and telegraph have become least popular and most people today use e-mail to keep in touch. Leading to this is a concern regarding the rights that an employer should give to their employees to communicate with their friends and relatives. With the popularity of chat software’s, PDAs, phone camera’s, etc. used for workplace communication, it has become even difficult to monitor employee communication.
 Konrad, R. (2000) “Leaks and geeks: International espionage goes high-tech”,
 Sinrod, E.J. (2001) “Electronic surveillance in the workplace”, USAToday.com
 Chen, H. (2000) “Internet Use Survey 2000 – Trends and Surprises in Workplace Web Use” Vault.com.
 Lening, C. (2000) “Chemical Fires 50 Over E-mail Abuse”, USA Today.