E-Mail Concerns

Electronic mail is a new medium by which messages can be flashed almost instantaneously from one personal computer to another. Many businesses that have linked their personal computers together have in-house e-mail. Many businesses and individuals are now connected to the Internet and can exchange e-mail messages with millions of computer users throughout the world.

E-Mail Privacy

On the face of it, reading someone else's e-mail seems analogous to listening in on telephone calls. Cases such as Bianco v. American Broadcasting Co., 470 F. Supp. 182, 185 (N.D. Ill. 1979), have held that federal statutes prohibiting electronic eavesdropping might prohibit an employer from listening in on telephone conversations in which an employee has a reasonable expectation of privacy. Similarly, in Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983), the court held that a manager who routinely monitored business calls from an extension telephone (which falls within an exception to the Federal Wiretapping Statute) had gone too far when she continued to listen in on an employee's call after hearing enough to know that the subject matter was personal.

However, the courts have not made clear the extent to which the Federal Wiretapping Statute applies to e-mail. For example, in Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994), the Secret Service seized a BBS which contained unread, private e-mail. The court held that the Secret Service had violated the Privacy Protection Act, 42 U.S.C. § 2000aa et. seq., and that portion of the Federal Wiretap Act (as amended by the Electronic Communications Privacy Act) which proscribes intentional access, without authorization, to stored electronic communications, 18 U.S.C. §§ 2701-2711, but did not violate the portion of the Wiretap statute which proscribes the intentional interception of electronic communications, 18 U.S.C. §§ 2510-2521.

In any event, the statutory privacy protections conferred by the Electronic Communications Privacy Act are also limited by some significant exceptions. An employer is not liable under the statute for reading an employee's e-mail if one of the parties to the communication consented to the monitoring. Many companies adopt e-mail policies which employees sign, agreeing that they consent to such monitoring on an ongoing basis. Another exception allows companies to monitor e-mail if there is a legitimate business reason for the monitoring. Finally, a company that provides an e-mail service can monitor communications in order to protect itself, such as in cases where the company believes it is being defrauded.

A decision in Pennsylvania held that employees do not have a right of privacy in their employer-provided e-mail. In Smyth v. Pillsbury Company, 914 F.Supp. 97 (E.D. Pa. 1996), the plaintiff was discharged from his job for allegedly making unprofessional comments in an e-mail to his supervisor (the e-mail allegedly contained threats to "kill the backstabbing bastards" in sales management, and referred to the upcoming Holiday party as a "Jim Jones Koolaid affair"). The company had repeatedly assured its employees that e-mail was private, could not be intercepted by management, and could not be used as grounds for termination or reprimand of employees. The plaintiff alleged that he relied on these assurances when writing his e-mail. Nevertheless, management did intercept and read the messages, and fired the employee. The court ruled that the company was entitled to fire the employee, because its right to fire an at-will employee was not limited by its assurances, and because the employee's expectation or right to privacy did not outweigh the company's interests. The court stated that "once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost." Furthermore, even if he did have a reasonable expectation of privacy, the court rejected the notion "that a reasonable person would consider the defendant's interception of these communications to be a substantial and highly offensive invasion of his privacy."

Companies are increasingly adopting policies which address e-mail privacy concerns. Of course, there are competing interests at stake. Some companies prohibit all non-business uses of e-mail, and expressly reserve the right to monitor any and all communications. Others, concerned about maintaining good will and trust among employees, take less stringent approaches, allowing personal use to the extent it does not interfere with company business, and reserving the right to monitor only under certain conditions. In any event, employers are increasingly seeking to protect themselves from invasion of privacy suits by adopting e-mail policies, notifying employees of the policy, and faithfully adhering to the policy.

Spamming

Another concern is so-called "spamming" -- the mass distribution of unsolicited e-mail advertisements. Although "netiquette" (generally accepted rules of etiquette on the Internet) once frowned upon such practices, as the Internet has become increasingly commercial, spam has become much more common and generally accepted and tolerated, if not loved. Some estimates place the amount of spam flowing through the Internet as high as 5-30% of all e-mail.

At this time, it appears that spam, at least in its most basic form, is legal. This is not to say that there is no basis for arguing that it is illegal. One argument that has been advanced in theory, though apparently never in court, is based upon a law prohibiting the unsolicited distribution of advertisements by fax. The law, 47 U.S.C. § 227, makes it illegal to "send an unsolicited advertisement to a telephone facsimile machine," which is defined as "equipment which has the capacity. . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." Arguably, this definition could include any computer equipped with a modem and a printer.

In the absence of such creative new legal theories, there have been two general approaches to "control" spam. The first is to bring action against spammers who use unethical, unfair, or destructive methods. America Online and a company called Cyber Promotions, Inc. sued one another in separate courts over issues revolving around unsolicited e-mail. According to the allegations, Cyber Promotions sent thousands of pieces of e-mail to AOL e-mail addresses. Because many of the addresses were invalid, thousands of e-mail pieces were bounced back to Cyber Promotions, crashing the company's server. Cyber Promotions claimed that AOL deliberately saved up all the undeliverable e-mail, altered the return path, and sent it back to Cyber Promotions as an "e-mail bomb" designed to bring down the server. Cyber Promotions allegedly responded by changing the return address on the mailings to a computer operated by AOL. When mail was bounced, it bounced to AOL's computers, allegedly damaging the system and impairing AOL's security systems. The case resulted in two reported decisions. In the first, at 948 F. Supp 436 (E.D. Pa. 1996), the Court held that Cyber Promotions did not have a First Amendment right to send e-mail through AOL, since the First Amendment only prohibits governmental entities from abridging free speech, and AOL is not a governmental entity. In the second decision, at 948 F. Supp. 456, the Court denied Cyber's claim for relief based on its allegation that AOL was wrongfully blocking e-mail from Cyber. In fact, AOL had instituted a blocking system which only allowed spam to be received by members who affirmatively stated that they wished to receive such e-mail. Cyber argued that AOL was wrongfully using its "monopoly power" and was wrongfully "refusing to deal" with Cyber. The Court rejected both arguments, finding that there was no antitrust claim because Cyber and AOL were not competing for the same market, and that AOL, like any business, was not under any obligation to deal with any particular entity. After these decisions, the case settled under terms that allowed Cyber to send spam to AOL members only if the e-mail originated from one of five specified domain names, prohibited Cyber from circumventing AOL's blocking system, and requiring Cyber to make it possible for AOL members to remove themselves from Cyber's mailing lists.

Cyber Promotions was also the featured spammer in a case against CompuServe (which has since been bought by AOL). In CompuServe v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D. Ohio 1997), CompuServe successfully sued for an injunction completely prohibiting Cyber from sending e-mail to CompuServe users. The novel theory which convinced the court of CompuServe's position was trespass to chattels. In other words, the Court found that Cyber had used CompuServe's equipment without permission (by sending the spam to CompuServe's servers), and had thereby impaired the value of CompuServe's proprietary systems. The Court particularly noted that Cyber's actions had caused CompuServe to lose customers who terminated their accounts because they received too much unwanted e-mail. It is interesting to note that this theory might be extended to support a cause of action on behalf of a single frustrated e-mail user.

The second approach to controlling spam is to enact new legislation. Many states have introduced bills aimed at curbing spam and providing both service providers and aggrieved individuals with a remedy. One example of such an effort is S. 1618, which is currently pending in Congress. The bill is known as the "Slamming Bill," because its primary purpose is to protect consumers against the practice of changing a customer's long-distance telephone carrier without the customer's consent, a practice known as "slamming." Title III of the bill is titled "Spamming," and provides that any unsolicited commercial e-mail must contain a notice stating that the recipient will be removed from the mailing list by replying to the message with the word "remove" in the subject line. Some bulk e-mailers have already adopted this practice. However, some experts warn that unscrupulous spammers may use the replies simply to verify that the e-mail address is, in fact, valid. Thus, the practical result of replying with a "remove" message may simply be to invite more junk e-mail.

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