California Appeals Court Rules: Some E-mails Not Protected by Attorney Client Privilege

A California appeals court ruled last week that if a client sends an e-mail to an attorney from a work e-mail account, that e-mail is not protected by attorney-client privilege. What are the implications of this decision? In short, if you are suing your employer, you should not correspond with your attorney using company e-mail because the company may have a right to access and use it against you in court.

In the opinion, the court explained that the e-mails at issue in that case, which were sent on a company computer, were like “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.”

This case appears to expand on a recent Supreme Court decision from last year, which held that a police officer’s text messages on two-way department pagers were not private because the Ontario Police Department’s policy said that text messages on work pagers were not private.

Electronic privacy case law is still evolving and the law varies from state to state, and from situation to situation. For example, the New Jersey Supreme Court ruled that the use of a personal web-based e-mail account accessed from an employer’s computer were private.

Yet, in another case addressing the privacy issue, a California Circuit Court ruled that an employee has a reasonable expectation of privacy within the space of his private office. Therefore, “any search of that space and the items located therein must comply with the Fourth Amendment.” However, “had the company computer assigned to Ziegler [the  employee] for his business-use only been physically located outside a private office, we might have had to consider whether Ziegler had reasonable expectation of privacy in the device itself, in the face of a corporate policy of monitoring the corporate computers.”

Significantly, while recognizing the greater expectation of privacy within a specific office, the courts have also been clear that employees “reasonable expectation of privacy” is overcome if a company has clearly stated a policy that it has the right to inspect all equipment (including laptops, filing cabinets, etc) that it has provided to its employees.

Thus, “a public employee’s reasonable expectation of privacy may be reduced or eliminated by ‘legitimate regulations’ or by ‘office practices and procedures,’ such as how frequently coworkers and other individuals are permitted to enter the area that was searched.”

Along these same lines, the courts have found that an employee’s own conduct may limit his expectation of privacy and thus his privacy rights. For example, if an employee “knowingly exposes [materials] to the public, even in his own home or office, [those materials are] not a subject of Fourth Amendment protection.”

The lesson is that the legitimate interests of employers and employees are best met by the development and implementation of clear policies and practices regarding the use and monitoring of communications originating from a workplace. These policies must recognize both that employees do have a “reasonable expectation of privacy” but that employers also have a legitimate interest in ensuring that company email is utilized for its intended purpose.

At the end of the day, given the fragility of private information and the difficulty of  repairing the damage that can be done by public disclosure, employees are well advised to keep personal e-mails, documents, or the like out of the office and off of company computers or technological devices.

What do you think? Should a company have unlimited access to an employee’s work e-mail? Should employees have a reasonable expectation of privacy even on work e-mail? We welcome your thoughts! Please feel free to comment!

If you have questions about this issue, or if we may be of assistance to you, please feel free to contact us.

Federal Court Rules Fourth Amendment Protects Email

Last week, the Sixth Circuit Court of Appeals ruled that police must get a search warrant before searching Internet users’ email records.  The decision struck down part of The Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., which has been held to permit a governmental entity to compel a service provider (“ISP”) to disclose the contents of electronic communications in certain circumstances without a warrant.

The Court’s analysis was based on the long history of cases interpreting the scope of the protection provided by the Fourth Amendment against “unreasonable searches and seizures.” As the Court explained, it is well-established that, “[N]ot all government actions are invasive enough to implicate the Fourth Amendment.  The Fourth Amendment’s protections hinge on the occurrence of a “search”, which occurs when the government infringes upon an expectation of privacy that society is prepared to consider reasonable. The question of whether there is a reasonable expectation of privacy breaks down into two discrete inquiries: (i) has the target of the investigation manifested a subjective expectation of privacy in the object of the challenged search; and (ii) is society willing to recognize that expectation as reasonable?

With respect to defendant’s subjective expectation, the Court concluded that, given the “sensitive and sometimes damning substance of his emails,” the defendant clearly had an expectation that his emails would be private.  With respect to whether his expectation was reasonable, the Court first noted that, “[T]his question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication.”  With this in mind, the Court went on to conclude that defendant’s expectation of privacy was reasonable.  In reaching this conclusion, the Court gave substantial weight to the following matters: (i) the ubiquitous nature and use of email in all aspects of modern communication and life means that by obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities; (ii) the fact that information is being passed through a communications network; and (iii) the Fourth Amendment, which has historically focused on searches of physical property and telephonic communications, “must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”

“Given the fundamental similarities between email and traditional forms of communication,” the Court concluded that “it would defy common sense to afford emails lesser Fourth Amendment protection.” The Court went on to say, “It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long … serve[d]… [T]he police may not storm the post office and intercept a letter, and … are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant…”

The Court’s decision rendered the evidence against Defendant, Stephen Warshak, invalid. This ruling was far from a victory for the Defendant.  The Court affirmed the conviction Warshak for defrauding customers with his product, “natural male enhancement” pills.  However, the Court remanded Warshak’s case to a lower court for reconsideration of his sentence.  Warshak also remains liable for a $44 million money laundering judgment.

A complete copy of the Sixth Circuit Opinion is available here.

What do you think? Do you agree with the Sixth Circuit’s decision? Should users have a reasonable expectation of the privacy of their emails? Should it matter if they originate from a personal or third party employer’s email service?  We welcome your thoughts! Please feel free to comment!