At Least Your Boss Can't Read Your Home E-mail, Right? Wrong!

  • Written By: D. Geller
  • Published On: March 6 2000



Event Summary

Northwest Airlines Corp. NASDAQ NWAC) alleges that its flight attendants' union staged a sickout, which is a job action not allowed by the contract or by Federal labor law. Northwest obtained a subpoena to search the home computers of fourteen employees for emails containing the word "sickout."

Northwest is also searching two websites operated by two flight attendants and intends to seek information from their ISPs. The site operators themselves never called in sick and claim that they never called for a sickout and that postings on their site advocated that union members remain within the law. The broader issue is one of personal privacy.

Market Impact

While suits are filed right and left in the case of DoubleClick's use of "personally identifiable data" this case could make a more permanent mark on the legal landscape and on the use of the Internet. At issue is when it is permissible for a company - or a government - to seek information on a home computer.

There are precedents that allow this in some situations. Home computers are frequently impounded and searched in various criminal matters, and former CIA Director John Deutch lost his security clearance for keeping classified material on an unsecured home computer.

The precise permissibility of this kind of search depends on detailed rules of evidence and procedure, and will probably find its way at least to an Appellate Court level. With the advocacy group Public Citizen assisting in the defense, it is possible that the case may eventually be brought to the Supreme Court; Public Citizen had already filed a motion against a previous court action in this case. However, with technology in a state of rapid development it is not at all clear that the Court will be anxious to hear cases on this topic at this time.

But this action, if allowed to stand as a precedent by a higher court, raises questions for all employees. It is common for people to justify laws or judicial rulings that reduce protection against government intrusion by arguing that such laws "only affect people who are committing crimes." While sickouts may be deemed illegal under the Railway Labor Act, there is as yet no proof that either of the website operators engaged in a sickout or even advocated one.

One operator had posted a notice on his site requesting that users of a forum about ongoing union negotiations "please refrain from calling for certain actions that may be illegal. I know we all want results and we all wanted them yesterday if not three plus years ago but there are certain guidelines we have to follow even if NWA does not always do so. We must continue to keep the pressure on the leadership of the Local and the Company too."

The other site, according to Public Citizen, did not even have a forum but was restricted to news, competitive pay scales, and other information. Furthermore, the party doing the searching is a private company, through its agent Ernst & Young, and not a criminal justice agency.

One attorney we consulted pointed out that allowing this subpoena to stand might lead to a company being allowed to search your home computer for evidence of paying bills to liquor stores, or for an indication that you've thought about taking a sick day to attend a baseball game.

Perhaps that e-mail to your sister-in-law in which you said that you and a co-worker joked about your CEO being like the pointy-haired boss in Dilbert could be seen as working to hurt company morale. In the context of that example, this case poses two questions. First, if the company already has good reason to suspect you of sowing dissention, should they have the right to search your home computer for evidence? Second, if the company believes that somebody has been telling Dilbert jokes about management, do they have the right to search the home computers of a large number of people, to see if there's any evidence the phrase "pointy-haired" in their email files?

Public Citizen also claims that searching an ISP or website provider is in violation of the Communications Decency Act, "which forbids any information 'content provider' on the Internet from being held liable based on content provided by some other person."

User Recommendations

It is certainly true that e-mails can contain information of intense interest to other parties, and that sometimes searching these e-mails, like searching a person's home or car, is legal and appropriate. However, other times such searches would not be legal, and sometimes the appropriateness of a search (or of the law that authorizes it) is hotly contended.

As the law grinds its way to a policy, it may be wise for individuals to be as careful about discussing work-related issues through their home e-mail as they are through the office system, which everyone should understand is freely open to search at any time.

 

 
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