New Jersey Supreme Court Says Employees Have a Reasonable Expectation of Privacy when Using Third-party Email Systems, Even at Work

I write about issues surrounding enterprises monitoring employee email fairly regularly and wanted to note this interesting legal development related to employee email privacy. In a case involving a discrimination and harassment lawsuit filed by an employee of the "Loving Care Agency" home health care company during 2008, the New Jersey high court has ruled that an employer cannot read email messages that employees have sent via a third-party email service provider, even if those emails are accessed by the employee during work hours and from a company-provided computer.

Dark Reading has a good write-up of this story here:

N.J. Supreme Court Rules Employers Can't Always Read Personal Email

Within that article is a link to an interesting analysis of the case (Stengart vs. Loving Care) at Workplace Privacy Report. That analysis says that the NJ supreme court ruling has two important implications for employers:

First, the court stated that even with a clearly written and unambiguous policy regarding employer monitoring of email, the employee had a reasonable expectation that her email communications with her lawyer - conducted via the employee's personal, password-protected webmail account - would be private.

Second, that the Court's opinion suggests that employers cannot discipline employees for spending some time at work receiving personal, confidential legal advice from a private lawyer.

In a previous blog post (see "Reading Employee Email: Do Workers Have an Expectation of Privacy?"), I noted several other cases where courts were increasingly siding with employees in cases involving privacy and employer monitoring of email.

It will be interesting to see if this trend is reflected in our 2010 research on outbound email and data loss prevention issues. In our 2009 research, we found (among many other interesting facts) that 38% of large US companies employ staff to read or analyze the contents of outbound email messages. 

If you're interested in this topic and have not read Proofpoint's 2009 survey report, you should check it out. Download your copy here.