Although Ortega only focused on public employees the decision implied that private employees were not afforded protection. Subsequent decisions, such as Schowengerdt v. General Dynamics Corp., have followed Ortega and further weakened, and possibly practically eliminated, an employee's right to privacy in the computerized workplace. Schowengerdt held that the employee had a reasonable expectation to privacy in work areas of exclusive use to the employee, such as the employee's office, unless the employer had previously notified the employee that the employee's office was subject to a work-related search on a regular basis. The court concluded that despite the employee's reasonable expectation to privacy in his office, a warrantless search of the office was permissible when it was work-related and reasonable under the circumstances. The primary purpose of ECPA is to provide protection against unauthorized surveillance of electronic communications.
ECPA protection extends to textual information and transmissions of private carriers.
One difficulty with ECPA is that many commentators read the provider exception to exclude acts of private employers, however, there is nothing in the legislative history that indicates that Congress did not intend ECPA to apply to the situation where a private employer monitored an employee's e-mail transmissions. Congress in an attempt to close this gap introduced legislation in 1993, Privacy for Consumers and Workers Act, that while not banning electronic monitoring, does protect employees by granting them the right to know, i.e., the employee must be given notice, when they are being monitored or recorded electronically by their employer while performing their job. Currently one might contend that the best place to find privacy protection for private employees' e-mail is in respective state constitutions and statutes. Furthermore state wiretapping and eavesdropping statutes can provide greater privacy protection than respective federal legislation. Today the right to privacy is recognized in almost all states by statute or common law decisions.