Employer Liability for Employee Online Criminal Acts

I. INTRODUCTION Typing away at his computer while at work, Jacob Jacks forged a new and unhealthy relationship with an unassuming woman through an online "sex chat room." A computer technical advisor for Prodigy Services Company, Jacks repeatedly entered the chat room during work time for one reason: to befriend Barbara Haybeck and to persuade her to engage in sexual intercourse.(1) Jacks, a known sexual predator who had AIDS, used the Internet access provided by his employer to spend extensive time online with Haybeck.(2) Ultimately, Jacks succeeded in luring her into a sexual relationship. Before and during the relationship, Jacks denied having AIDS.(3) Haybeck contracted the deadly virus as a result of the sexual relationship and attempted to hold Prodigy liable for Jacks's Internet activity on the job.(4) In workplaces driven by the latest and most advanced technology, this scenario does not seem too unrealistic. Misuse of the company computer and Internet services provide other reprehensible fact patterns as well. Jacks's activity might not have been limited to e-mailing a woman to engage in consensual sex acts. Employer liability could also become an issue, for example, if he were selling child pornography over the Internet at work, entering other chat rooms to lure underage girls into his sex web, or even harassing a third party by use of the company's online service. While the computer and the Internet as effective communication devices have changed the face of business, they present new and unanswered problems for employers. What are the legal consequences for Prodigy and other employers when an employee uses a computer and his or her company's Internet service to engage in criminal activity or activity that furthers a criminal act?(5) Can the victim hold the employer liable under a respondeat superior or negligence doctrine? There is little question that these employees should be civilly, as well as criminally, liable for their abhorrent acts. However, the issue of employer liability becomes more recondite when these predators are not the parties involved in a suit resulting from their illegal conduct. Because the emergence of the information superhighway offers employees a new outlet to conceal improper activity from their employers, employer liability is only further complicated. Only twenty-five years ago, a mere 50,000 computers existed worldwide.(6) In 1997, that number was estimated at 140 million.(7) Today, 120 million people are linked via the Internet,(8) the vast majority of whom have gone online since 1990.(9) That number is three times as many as were online even two years ago.(10) Experts estimate that, in 1997 alone, these users sent nearly 2.7 trillion e-mail messages through their computers.(11) According to experts, "traffic on the Internet is doubling every 100 days."(12) For obvious reasons, this explosion of communication has greatly impacted the workplace. "Today, 90 percent of all companies with more than 1,000 employees use E-mail."(13) In 1996, a mere "34% of the Fortune 500 companies had World Wide Web sites"; in 1997, 80 percent of these companies had Web sites.(14) Meetings that formerly involved a pen, paper, and a handshake now involve a fax machine, a teleconference, or a simple e-mail message. The advantages of the computer workplace are obvious. Not only does technological advancement aid the average business, it also impacts the consumer who now receives services more efficiently and rapidly. As new means of communication, however, the computer and Internet activity in the workplace yield disadvantages as well. Employees may spend a significant part of their workday surfing the Internet, which is merely a double-click away. But what awaits employees on the Internet are "hits"(15) unrelated to their employment roles and to the missions of their companies. Therefore, workplace Internet use creates a unique opportunity for employees to engage in activity contrary to the interests of the employer, including criminal activity or harassment. …