Risk
4/5/2010
03:46 PM
Connect Directly
RSS
E-Mail
50%
50%

N.J. Supreme Court Rules Employers Can't Always Read Personal Email

Employees who use password-protected, third-party services can have a reasonable expectation of privacy, court says

In a ruling that could affect enterprises' privacy and security practices, the New Jersey Supreme Court last week ruled that an employer can not read email messages sent via a third-party email service provider -- even if the emails are accessed during work hours from a company PC.

According to news reports, the ruling upheld the sanctity of attorney-client privilege in electronic communications between a lawyer and a nursing manager at the Loving Care Agency.

After the manager quit and filed a discrimination and harassment lawsuit against the Bergen County home health care company in 2008, Loving Care retrieved the messages from the computer's hard drive and used them in preparing its defense.

The court found the company's policy regarding email use to be vague, noting it allows "occasional personal use."

"The policy does not address personal accounts at all," the decision said. "The policy does not warn employees that the contents of such emails are stored on a hard drive and can be forensically retrieved.

"Under all of the circumstances, we find that Stengart [Marina Stengart, the nursing manager] could reasonably expect that emails she exchanged with her attorney on her personal, password-protected, Web-based email account, accessed on a company laptop, would remain private," wrote Chief Justice Stuart Rabner in the decision, which upholds an appeals court ruling last year.

"Stengart plainly took steps to protect the privacy of those emails and shield them from her employer," Rabner continued. "She used a personal, password protected email account instead of her company email address and did not save the account's password on her computer."

Peter Frazza, Stengart's attorney, says the ruling sets a new boundary for employers who believe they have a right to all e-mails simply because they own the computer.

"Big Brother is always there, but employees have got to be comforted by the ruling, knowing they are protected," he says.

A legal analysis of the case suggests the court would have ruled against the company even if its policy had been more clearly stated.

"The Court stated that even a more clearly written and unambiguous policy regarding employer monitoring of emails would not be enforceable," the analysis states. "That is, a clear policy stating that the employer could retrieve and read an employee's attorney-client communication, accessed through a personal, password-protected e-mail account using the company's computer system, will not overcome an employee's expectation of privacy and the privilege would remain."

The Court's opinion also seems to suggest that employers cannot discipline employees for simply spending some time at work receiving personal, confidential legal advice from a private lawyer, although the Court noted that an employee who "spends long stretches of the workday" doing so can be disciplined, the analysis says.

Have a comment on this story? Please click "Discuss" below. If you'd like to contact Dark Reading's editors directly, send us a message. Tim Wilson is Editor in Chief and co-founder of Dark Reading.com, UBM Tech's online community for information security professionals. He is responsible for managing the site, assigning and editing content, and writing breaking news stories. Wilson has been recognized as one ... View Full Bio

Comment  | 
Print  | 
More Insights
Register for Dark Reading Newsletters
White Papers
Flash Poll
Current Issue
Cartoon
Video
Slideshows
Twitter Feed
Dark Reading - Bug Report
Bug Report
Enterprise Vulnerabilities
From DHS/US-CERT's National Vulnerability Database
CVE-2013-6335
Published: 2014-08-26
The Backup-Archive client in IBM Tivoli Storage Manager (TSM) for Space Management 5.x and 6.x before 6.2.5.3, 6.3.x before 6.3.2, 6.4.x before 6.4.2, and 7.1.x before 7.1.0.3 on Linux and AIX, and 5.x and 6.x before 6.1.5.6 on Solaris and HP-UX, does not preserve file permissions across backup and ...

CVE-2014-0480
Published: 2014-08-26
The core.urlresolvers.reverse function in Django before 1.4.14, 1.5.x before 1.5.9, 1.6.x before 1.6.6, and 1.7 before release candidate 3 does not properly validate URLs, which allows remote attackers to conduct phishing attacks via a // (slash slash) in a URL, which triggers a scheme-relative URL ...

CVE-2014-0481
Published: 2014-08-26
The default configuration for the file upload handling system in Django before 1.4.14, 1.5.x before 1.5.9, 1.6.x before 1.6.6, and 1.7 before release candidate 3 uses a sequential file name generation process when a file with a conflicting name is uploaded, which allows remote attackers to cause a d...

CVE-2014-0482
Published: 2014-08-26
The contrib.auth.middleware.RemoteUserMiddleware middleware in Django before 1.4.14, 1.5.x before 1.5.9, 1.6.x before 1.6.6, and 1.7 before release candidate 3, when using the contrib.auth.backends.RemoteUserBackend backend, allows remote authenticated users to hijack web sessions via vectors relate...

CVE-2014-0483
Published: 2014-08-26
The administrative interface (contrib.admin) in Django before 1.4.14, 1.5.x before 1.5.9, 1.6.x before 1.6.6, and 1.7 before release candidate 3 does not check if a field represents a relationship between models, which allows remote authenticated users to obtain sensitive information via a to_field ...

Best of the Web
Dark Reading Radio
Archived Dark Reading Radio
This episode of Dark Reading Radio looks at infosec security from the big enterprise POV with interviews featuring Ron Plesco, Cyber Investigations, Intelligence & Analytics at KPMG; and Chris Inglis & Chris Bell of Securonix.