Monday, June 23, 2008

Are your studio e-mails confidential?

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Maybe -- but maybe not ...

Those Guild members who've signed up for our e-mail list probably know that we don’t accept employer-suffixed e-mails (,,, etc.) for the forwarding of job postings and Guild announcements.

That’s because, at least until recently, management had the right to read any e-mails sent or received on their systems, and they had policies about what could or couldn’t be sent. For example, some employers do not allow their employees to use their e-mails to receive or solicit job offerings from other employers. And almost all employers have policies about sending or forwarding offensive messages.

(Years ago, we filed a grievance on behalf an employee who had sent not-nice e-mails in the studio chief's name on the studio's computer network. He'd been fired for it, and complained that his constitutional rights had been violated. I told him he didn't have many rights when he used a studio's computer system, but filed a grievance anyway. We lost the arbitration hearing for that grievance resoundingly. -- Hulett)

A recent U.S. Ninth Circuit Court ruling might have some impact on employer’s rights in this area, BUT it comes with an important caveat ...

The ruling, upholding a lower-court verdict in the case of Quon v. Arch Wireless, says that if an employer subcontracts their electronic communications (e-mails, cellphones or text messaging) to an outside provider, it does not have the right to ask the service provider for transcripts of the messages employees send out:

It is a win for privacy rights advocates who perhaps had never expected to see employers curtailed in this fashion. Courts have long established that employees should have no expectation of privacy when sending e-mails from employers' computers. If the e-mails are stored on internal servers, that is still the case. (Emphasis mine.)

This new ruling, though, carves out new privacy protection for employees, especially those who use employer-supplied cell phones and pagers. Indeed, it is the first time the Fourth Amendment -- protection against unreasonable search -- has been applied to electronic communications in a work setting, Charles Baker, a partner with Porter & Hedges, told the E-Commerce Times.

The ruling could open up new lines of attack against the long-established belief that an employer has the right to see anything that is sent out on its e-mail system, he speculated. Even if servers are in-house, he said, "one could argue that this ruling applies."

For our purposes regarding studio e-mails, the catch is, of course, the internal-server question. Almost all our large employers store their e-mails on internal servers, and it is at best unclear whether those e-mails are still subject to management inspection. (And it should be noted that Ninth Circuit decisions have been frequently subject to reversal, especially given the attitudes of the current Supreme Court.)

So, until the issue is more conclusively decided, we’re still counseling anyone to be careful what they say in a studio e-mail, and we will still encourage members to limit their electronic contacts with the Guild to their home e-mails.

There’s more on this decision at TechWorld News, the Electronic Frontier Foundation, and the Volokh Conspiracy blog. And if you're a Guild member (active or inactive) who wants to get on our e-mail list, send me an e-mail (from your home address, of course ...)


Benjamin Wright said...

Jeff: The Quon case may give employers incentive to broadcast multiple, repetitive privacy disclaimers. What do you think? --Ben

Jeff Massie said...

The Quon case involved a policeman whose personal messages exceeded the monthly texting limits on his official pager. He was told by his immediate supervisor that as long as he paid the overages, the department would not read the contents of his messages. However, the department had a written policy that they had the right to monitor message content, and the department head requested and received a transcript from the wireless company. The policeman sued the wireless company for violation of his Fourth Amendment rights, and the court and the Ninth Circuit found in his favor.

The three sites I cited above have pretty different interpretations of how this ruling can be interpreted, but I think the Hackigations post has a point, that as long as the employer's inspection policy is clearly stated in writing, it can probably be enforced.

A few contract cycles ago, we were in negotiations with an employer who was making some very controversial demands. The employees got wind of what was going on and exchanged internal e-mails about it. The employer's labor relations VP showed up at the next negotiations with a stack of printouts of the offending e-mails, and demanded we tell our members to knock it off.

As Hackigations says, companies have a reasonable expectation that their employees won't circulate e-mails that, for example, violate sexual or racial harassment policies and statutes. In the case of our negotiations, the employees had the legally protected right to discuss union issues in the workplace on their own time, but management had the right to complain if the e-mail time stamps showed they were sent during working hours.

In light of Quon, management will probably be more careful than they were in our past negotiations, so you're likely to see more warnings about email policy, and a greater effort at consistency in enforcing the policy. But it's unlikely they will surrender their inspection prerogatives quite so easily.

Bottom line: your employer almost certainly has a written e-mail policy, and you should make sure you know what it is –- and follow it.

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