Computers and other electronic information processing and communications devices are ubiquitous in the workplace and elsewhere. Most employees spend a good part of their workday, and often their nonwork time as well, tethered to electronic communications and information-processing devices. This reliance on electronic communication devices opens new avenues for the monitoring and surveillance of employees and poses profound privacy issues.

The Electronic Communications Privacy Act (ECPA) is not exclusively an employment law, but it has been used to challenge employer incursions on the privacy of electronic communications. Under the ECPA, employers are prohibited from intentionally intercepting wire, oral, or electronic communications and from disclosing such information. The intentional, unauthorized accessing of stored electronic communications is also prohibited.

The distinction between intercepting electronic communications and accessing stored communications has proved troublesome to apply to communications such as email and Internet sites. Courts have generally held that the stricter penalties associated with interception apply only when a communication is obtained at the same time it is sent. There are some notable exceptions to the ECPA’s general requirements. Interceptions are legal if prior consent to them was granted.

Providers of wire or electronic communication services are exempted from the law’s requirements if it is necessary to render service or protect their rights and property. In the context of telephone conversations, employers can use additional extensions on business phones to monitor business calls for service quality or other business purposes but cannot listen in on personal calls.

State laws are sometimes more restrictive, including requiring notification to all parties that calls are subject to monitoring. Personal calls can be monitored only to the degree needed to determine that they are indeed personal. Thus, an employer violated the ECPA by intercepting, tape recording, and listening to all of its employees’ personal calls.

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