In contrast to private home usage of the Internet, Internet communication in the workplace is given far less privacy protection under the ECPA. Underpinning this difference are philosophical assumptions about how much privacy individuals may expect at home as opposed to what they may normally expect at work. As courts have long recognized, several factors influence this question: the nature of the workplace, the relationship between employees and employers, and the legal concerns of employers are all issues that shape why the employee has a lesser expectation of privacy at work than at home.
The law permits private employers to monitor worker e-mail usage in two main ways:
- In the ordinary course of business
- When employees have given consent
Because employer monitoring of employees has been at the heart of much litigation, the courts have helped to define what these conditions mean. In determining whether monitoring is legal in the ordinary course of business, courts generally examine the reasons that businesses conduct the monitoring. Generally, workplace monitoring has been held to be legal under the ECPA where employers have provided notice of the policy to conduct monitoring and limited it to monitoring communication that is business-related rather than personal.
Private business and public sector employees come under different laws. While employees may give consent to monitoring, the courts have also found that “implied consent” may exist. This consent occurs when employees know or should have known that their employers intercept their electronic communications. Public sector employers are subject to a different legal standard. Monitoring in a government workplace may trigger constitutional issues such as the First Amendment right to free speech or the Fourth Amendment right to be free from an unreasonable search or seizure.