The most recent federal court to address squarely whether an employer s monitoring of an employee s e-mail communications improperly intrudes upon an employee s right of privacy was the United States District Court for the Eastern District of Pennsylvania in Smyth v. Given the impact that communications technology has had upon the workplace, a significant evolution in the law of employee privacy is required. An employee s right of privacy in computer communications should be at least co-extensive with his privacy rights in common carrier communications. There is no practical or logical reason supporting the courts current bifurcation of worker privacy rights regarding phone communications and e-mail or computer communications.
Privacy rights hinge on important notions of human dignity.
The law must advance and evolve with technology to ensure the continued vitality of an employee s right of privacy. Indeed, the Smyth decision serves to remind us that the scales need to be re-calibrated to better protect employee privacy. Privacy law requires courts to balance the interests of employees against those of the employer. To this end, effective judicial balancing ferrets out the legitimate interests of the parties when the balance is done to reflect the appropriate backdrop of the interests of the parties. When a court decides that an employer s interest legitimately supports burdening an employee s right of privacy, then the court should carefully circumscribe the permissible instances where electronic monitoring could occur in order to safeguard employees from possible abuses of surveillance technology.