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Dirom, Pavlina B --- "Employers' Rights to Monitor Employee Email Under United States Law" [2001] MurdochUeJlLaw 26; (2001) 8(4) Murdoch University Electronic Journal of Law
Employers'
Rights to Monitor Employee Email Under United States Law
Author: |
Pavlina B Dirom
University of Richmond School of Law
|
Issue: |
Volume 8, Number 4 (December 2001)
|
Contents:
1.
In
a study completed in April 2000, the American Management Association
determined that more than two-thirds of employers engage in some form of
monitoring of their employees.[1] There are good reasons for monitoring because:
- e-mail exposes an employer to
an increased liability in employee discrimination suits;
- it allows the employer to
protect its company's information assets, including intellectual property,
trade secrets and
confidential information; and
- it also helps the employer to
make sure that employees are truly working, as opposed to doing personal
business on company
time.
- But, by doing so, employers may
incur liability for their intrusion into the employee's privacy
rights.� Because the laws
in this
area remain unclear, many commentators[2] advocate implementation of a comprehensive
e-mail monitoring policy to protect employers from the intrusion of
privacy
lawsuits by their employees.�
These policies are consistent with the evolving legal standard,
which suggests that as an
individual's expectation that she is under surveillance
increases, the scope of her expectation of privacy decreases.[3] It is only fair to warn an employee about
monitoring because it may affect the choices she makes about what she says
and
what she does.� These choices
are in part governed by her expectation regarding the extent to which
knowledge of her actions
may be used to her detriment.[4] On the other hand, as one commentator
argues, an employer should be barred from manipulating employee
expectations through
notification, and instead, a "compelling
business interest" standard of privacy should be implemented in this
area, which would serve to reaffirm the "fundamental" nature of
privacy.[5] This idea is just one of many suggestions
devised by legal scholars to improve employee e-mail privacy.� In the meantime, American
courts find
themselves in "the unenviable position of having to adjudicate novel
privacy complaints, brought by employees
against employers, without
precise constitutional or statutory guidance.[6]
- This comment will give in Part II an
overview of the Electronic Communications Privacy Act of 1986
("ECPA").� It will
argue that an employer can avoid liability by accessing an e-mail while in
post-transmission storage because
the current interpretation of the
relationship between The Wiretap Act and The Stored
Communications Act makes this differentiation possible.� It will further argue that the ECPA
is limited in its coverage to the interception of the e-mail message
before arrival and that even such limited protection
has many exceptions
to its application.� The ECPA
thus gives an employer significant leeway in monitoring its
employees.� In Part III, the comment
will argue that because
the ECPA is vague and ambiguous, and
because the courts and Congress have done little to clarify these
ambiguities, employers must
be cautious in the way they do their
monitoring to protect themselves from the privacy complaints.� Implementation and compliance
with this
comprehensive monitoring policy is thus essential. In Part IV, the comment
will provide an example of the Congress's
effort to protect employee
privacy and it will argue that the individual right to privacy is bound to
face fierce opposition.
- Although e-mail communications are
protected by the ECPA,[7] technological innovations have outpaced
legislative reform to such an extent that the ECPA fails to protect
employees in most situations involving e-mail monitoring by private or
public employers. The ECPA [8] was introduced and passed in order
"to update and clarify Federal privacy protections and standards in
light of dramatic
changes in new computer and telecommunications
technologies."[9] The ECPA is an amendment to Title
III of the Omnibus Crime Control and Safe Streets Act of 1968, also
known as the Federal Wiretap Law[10] The ECPA inserted the term
"electronic communications" wherever Title III previously only
protected wire and oral communications.[11] It extended the coverage by prohibiting
unauthorized interceptions by all carriers, not just common carriers,[12] and prohibited the interception of
electronic messages in transmission[13] and storage.[14] The ECPA has been noted for its
lack of clarity[15] and described as leaving still too much
leeway for monitoring employee communications.[16]
- There are two Acts within the ECPA
that affect an employer's right to monitor an employee's e-mail: The
Wiretap Act[17] and The Stored Communications Act.[18] "Courts and scholars have
struggled to determine the precise boundaries of and also the intended
relationship between
the Wiretap Act and the Stored
Communications Act by looking to the language of the statute,
legislative history, and basic understanding of communication
technology."[19] The Court in Fraser held that the Wiretap
Act provides protection for private communication only during the
course of transaction, and that the Stored Communication Act
provides protection only for messages while they are in the course of
transmission, concluding that retrieval of a message
from
post-transmission storage is not covered by the Act.[20] Similarly, the Court in Bochan reasoned
that the City of Reno did not violate the ECPA because
"2701(c)(1) allows service providers to do as they wish when it comes
to accessing communications in electronic
storage."[21] The ECPA thus protects employees
only when an employer "intercepts",[22] or "accesses" the message while
it is stored in the "intermediate" or "back-up
storage",
which means that the message is acquired "before
arrival".[23] Even though some courts are permitting
monitoring communication once in storage, employers should be aware that
there are
courts, which are ready to embrace the reasoning that such
blanket permission is an "unsupportable result given Congress's
emphasis of individual privacy rights during passage of the ECPA."[24]
- In addition, the ECPA
provides several far-reaching exceptions, which allow employers to monitor
communications that would otherwise fall under
the "intercepts"
or "accesses" inclusion. They are
- the system provider exception,[25]
- the business extension or
ordinary course of business exception,[26] and
- the consent exception.[27]
7. This exception
allows network providers to intercept, assess, disclose, or use employee e-mail
if intrusion is made during the ordinary
course of business and is either:
q
(a) necessary to rendering of service or
q
(b) necessary to protect the rights or property of the
company.[28]
8. There are two
major interpretative issues regarding this exception:
q
(a) who is the provider, and
q
(b) what happens when a private network provider allows a
significant number of outsiders to utilize its system.
9.
However, at minimum, the provider exception should not
apply to employers who furnish networks through public providers.[29]
10.
In Bochan, the court held that the City of Reno did not
violate the ECPA because it was a provider of an internal voice
messaging system.[30] Similarly, the court in Andersen held that UOP
LLC (UOP) did not violate the ECPA when it disclosed e-mail messages
from Andersen employees to the Wall Street Journal.[31] The Andersen employees had been working for UOP
as contractors, and had been using UOP's e-mail system in the course of
their contract work for UOP.�
Andersen argued that UOP was a public provider.� The court found that UOP was not a
public service provider under 18 U.S.C. 2702(a)(1); but only provided services
to its employees which included the Andersen
employees, and dismissed the
Andersen's action.[32]� The
outcome of the case therefore assumes that UOP was a service
provider.�
11.
While these cases do not definitely answer the questions,
they are inclined to interpret this grey area in favor of firms providing
e-mail services to its employees.� In
addition, there have been several California cases that addressed the issue of
workplace e-mail
monitoring which concluded that there simply is no ECPA
violation if the company providing an electronic communication service examines
everything on the e-mail system.�� The
California
court, which is known for its innovative approaches to the law and
which is bound by its state Constitution that establishes privacy
as a
fundamental right, refused to extend the privacy right to employee e-mail,
suggesting that such a determination should be left
to the legislature. [33]
12.
This
exception focuses on the type of equipment used to access transmission.� It permits a network provider to access
e-mail so long
as
q
the
intercepting devise is part of the communications network, and
q
the
device is used in the ordinary course of business, where the courts would
inquire into whether an employer has a "legal interest"
in
monitoring communications.[34]
- Courts tend to approach the
cases either by looking at the context[35] of intrusion or by looking at the content
of communication. Applying the content approach, the court will first
determine
whether communication is "personal" or
"business", and then use the result to decide whether the
employer's
business interest justifies the intrusion.[36]
- The context approach relies
more heavily upon the questions of workplace environment, including
notification and legitimate
business interest.[37] It is settled law that unlimited
monitoring is unlawful under the ECPA that courts will explore the
reasons behind employee monitoring, and limit the scope of monitoring if
necessary.[38] Unlike the context approach, the content
approach focuses on the subject matter of the communication. The courts
have ruled
that employers can lawfully intercept "business"
communications, but have limited rights to monitor "personal
communications".[39]
- The court in Watkins held that
a personal call might not be intercepted in the ordinary course of
business, except to the
extent necessary to guard against unauthorized use
and to determine whether the call is personal or business.[40] Since companies can be held responsible
for the content of employee's electronic correspondence, e-mail policies
are spreading.
For example, in Seattle, a woman sued her former employer
for age discrimination.� Her complaint
seemed unlikely to succeed
until her attorney hired a computer consultant
specializing in e-mail retrieval.�
This specialist used software, which
is capable of
"unerasing" a supposedly deleted e-mail message. The e-mail
implicated the company's president,
and the company settled for $250,000.[41] In Blakely v. Continental Airlines,
the New Jersey Supreme Court held that derogatory and potentially
offensive e-mails posted on an electronic bulletin board
provided by the
employer could support a hostile work environment claim under New Jersey's
anti-discriminatory laws.[42] As a reaction to this trend, employers
began to apply strong disciplinary actions when they discovered offensive
e-mails,
because the company's actions upon discovering damaging e-mail
can be taken into account in determining whether a hostile work
environment exists.[43]��
In 1999, Xerox Corp. fired about 40 employees for inappropriate use
of the Internet, and last year, the New York Times
Co. terminated nearly
20 employees for sharing allegedly offensive e-mails on the company
network.[44] In sum, both approaches indicate
two trends:
q
an
employer who notifies employees of the monitoring is highly insulated from
invasion of privacy claims, and
q
an
employer can lawfully intercept an e-mail transmission to the extent needed to
determine whether the message is business-related
or personal."[45]
- As for the notification, the
protection is not iron-cloud. As one commentator argues
�"an
employer who publishes such a policy is thus only limited in that the scope of
its intrusion must match the legitimate business
interest justifying the
invasion, and employers can expand the permissible scope simply by offering
legitimate interests justifying
broad monitoring policies."[46]
- In Smyth v. Pillsbury Co.,
the court determined that under Pennsylvania law, a company's interest in
preventing inappropriate comments over its e-mail
system outweighs any
privacy interest the employee may have in those comments.[47] Furthermore, the question still persists
about how far into an e-mail message a person can read before the
"business
or private" distinction is made. The solution might
lie in the technology itself. The programs could be installed to screen
the stored records "in search of names, phrases, or other references
that indicate the nature, source, or target of
communication."[48]
- Prior consent exception appears
to be the most certain protection against liability under the ECPA
because interception of electronic communication is expressly allowed by
the ECPA when "one of the parties to the communication has
given prior consent".[49] However, the courts are not clear whether
consent must be expressed or can be implied.
- In Watkins, the court stated
that the implied consent should not be "cavalierly applied," and
that mere knowledge
of monitoring capability cannot be considered implied
consent to an employer monitoring all calls.[50] While the employee's acceptance of
employment with knowledge of the firm's policy of monitoring solicitation
calls as part
of its training program did act as consent to monitoring all
sales calls, the court held that it did not include consent to
monitoring
of personal calls beyond the point necessary to determine the nature of
the call.[51] Similarly, the court in Deal v. Spears
argued that mere knowledge of a possibility or threat of monitoring is
insufficient.[52] On the other hand, the court in Bochan
found that the consent exception includes a person's implied consent to
the accessing
of message, when it is known by him that other parties prior
to using the system can access messages in the system.[53] Despite this ambiguity, however, these
cases bespeak the idea that e-mail could be accessed under the authority
of published
monitoring policy.[54]
- E-mail is fast and easy to use
- maybe too easy! Many users consider e-mail less formal and potentially
more personal. These
attributes are also e-mail's biggest shortcomings.
Employees are devoting less attention to what is written and are including
information that might be confidential or offensive believing that they
are sending a private message for the recipient's
eyes only. In addition,
the e-mail can be distributed, copied and read without the sender's
knowledge once he hits the
"send" button. Many employees also
mistakenly believe that if they delete the message from their in or out
box,
the message is gone, but instead the message is stored on the network
system and can be retrieved for review at any time. Because
the e-mail
messages, including deleted e-mails, are discoverable in federal court,[55] employers are exposed to liability in
many ways. Firms must find a way to balance their legitimate interests in
monitoring
employees with employees' rights to privacy in the workplace.
- One way to manage the many
risks presented by e-mail is to have a formal e-mail monitoring policy.
The employer, however,
needs to follow it and stay within its scope for it
to be effective. An employer has little room to defend himself when he
violates the boundaries of the policy by excessive, unwarranted or
unnecessary monitoring; therefore, monitoring should
be limited to the
extent of protecting the employer's legitimate business interest by
applying the least intrusive method
of monitoring; disclosure should be
limited only to those who have a legitimate need to know; and excessive
intrusion into
personal communications should be avoided.[56] The policies should differ depending on
the business needs; it should be given to all employees and placed in the
employee
manuals; and the policy should specify that the e-mail system is
the property of the employer and is subject to monitoring at
any time,
with or without notice, at management's sole discretion.[57]
- As one commentator agues, there
are at least six elements to an effective monitoring policy which would
reduce any reasonable
expectation of privacy: notification that (1) e-mail
is solely or primarily for business use, published in the handbook and/or
provided as a message on the employee's monitor at every log-in; (2) the
system should not be used to convey any improper
messages; (3) the company
endorses a no-solicitation rule and provides instead an electronic
bulletin board for this purpose;
(4) deletion of a message or file may not
fully eliminate the message from the system; (5) an employee must sign a
form
acknowledging the employer's absolute right to access; and (6)
violation of policy or abuse of the system may result in disciplinary
actions.[58] In addition, e-mail messages should be
treated as non-confidential.
- Because the current ECPA case law
provides minimal restraint on a firm's access to the user's e-mail
communications, additional congressional efforts
will be needed to protect
employees' and users' e-mail communication privacy. In 1993, the
Privacy for Consumers and Workers Act ("PCWA")[59] was introduced into Congress, and even
though none of this legislation has been enacted into the law, it remains
one of
the most pronounced efforts to further the right to privacy.� For example, the PCWA imposed
requirements that employers must provide notice to all employees with
details of the form of surveillance to be
used, the data that will be
collected, and the use that will be made of the data collected.
Additionally, employers must
provide advance notice of the time the
monitoring will occur, and the possibility to review and correct
information that
they believe to be in error. [60] The PCWA was criticized for
inadequately balancing the needs of the employer and employee; however, it
is an indication of the way
Congress may frame the issue of employee
monitoring in the future.[61] As a result of the defeat of the PCWA
in Congress, many observers have offered their own proposals.[62]
- The individual's right to privacy is
generally subordinated to the interests of corporations because the
"balancing"
of interests that courts and legislatures pursue
makes use of an "ideologically distorted scale that gives the benefit
of the doubt to corporate interests."[63] The firm is more often than not
identified with the social collective and an idealized "public
interest", which
weighs more heavily with the firm than with the
interests of an individual. As one commentator observes, most states that
recognize the tort for invasion of privacy do not receive it favorably.[64] On the other hand, he argues that
"the interests of the corporate sector cannot be assumed to be
wholly, or even primarily,
coincident with the interests of an entire
society. Thus, while individual interests may conflict with, and sometimes
ought
to prevail over, the interests of the social collective, the
'interests' of a corporate entity can never be assumed to be anything
other than subordinate to those of society."[65] It is thus foreseeable that there will be
fierce opposition against efforts to increase the ability of individuals
to assert
their rights in this area.[66]
- The technology of e-mail poses new
employer's liability and workplace privacy issues. The ECPA is too
vague and ambiguous to resolve any of those issues. Until new federal
legislation is put in place, employees are
left with minimal protections
and employers are forced to operate in an intricate legal environment.
[1]
Allison R. Michael & Scott M. Lidman, Monitoring
of Employees Still Growing, NAT'L L.J., Jan. 29, 2001, at B9.
[2] See Thomas R. Greenberg,
E-Mail and Voice Mail:
Employee Privacy and the Federal Wiretap Statute, 44 AM. U. L. REV. 219,
249-50 (1994); Jarrod J. White, E-Mail-Work.Com/Employer Monitoring of Employee E-Mail, 48 ALA. L. REV. 1079, 1103-04 (1997).
[3] Oscar H. Gandy, Jr., Legitimate Business
Interest: No End in Sight? An Inquiry into the Status of Privacy in Cyberspace,
1996 U. CHI. LEGAL F. 77, 78.
[4] Id. at 78.
[5] Alexander I. Rodriguez, All Bark, No Byte: Employee
E-mail Privacy Rights in the Private Sector Workplace, 47 EMORY L.J. 1439,
1467 (1998).
[6] Id. at 1472 (giving examples - Professor Lawrence
Tribe's proposed Twenty-Seventh Amendment to the Constitution protecting
privacy rights, creating statutory presumption against the waiver of right to
privacy in order to shift the current reasonableness
balancing test between
employee expectations and business interests in favor of privacy interests,
etc.).
[7] See Steve Jackson Games, Inc. v. United States
Secret Serv., [1994] USCA5 2826; 36 F.3d 457 (5th Cir. 1994).
[8] Electronic Communications Privacy Act of 1986,
18 U.S.C. �� 2510-2711 (1998).
[9] Fraser v. Nationwide Mut. Ins. Co., 135 F.
Supp. 2d 623, 633 (E.D. Pa. 2001) (quoting S. Rep. No. 99-541, at 1 (1986),
reprinted in 1986 U.S.C.C.A.N. 3555).
[10] See 18 U.S.C. � 2511 (1998); S. REP. NO. 99-541,
at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.
[11] See 18 U.S.C. � 2511(1)(a) (1998) (adding
"electronic" communications).
[12] See 18 U.S.C. � 2511(2)(a)(i) (1998). See also
Alexander I. Rodriguez, All Bark, No Byte: Employee E-mail Privacy Rights in
the Private Sector Workplace, 47 EMORY L.J. 1439, 1449 n.56 (1998) (arguing
that legislative history reveals that Congress intended the ECPA to extend
protection to private telephone
networks, not just common carriers).
[13] See 18 U.S.C. � 2511(1) (1998) ( The Wiretap
Act provides a civil cause of action against "any person who - (a)
intentionally intercepts, endeavors to intercept, or procures
any other person
to intercept or endeavor to intercept any wire, oral, or electronic
communications").
[14] See 18 U.S.C. � 2701(a) (1998) (The Stored
Communications Act establishes civil liability of one who:
"(1)intentionally accesses without authorization a facility through
which an electronic communication service is provided; or
(2)intentionally exceeds an authorization to access that facility; and
thereby obtains, alters, or prevents authorized access to a
wire or electronic
communication while it is in electronic storage in such
system... . . .").
[15] See, e.g. Fraser v. Nationwide Mut. Ins. Co.,
135 F. Supp. 2d 623, 633 (E.D. Pa. 2001) (citing United States v. Smith,
[1998] USCA9 1719; 155 F.3d 1051, 1055 (9th Cir. 1998)); Konop v. Hawaiian Airlines, Inc.,
[2001] USCA9 15; 236 F.3d 1035, 1042 (9th Cir. 2001) (calling the ECPA the "statutory
thicket").
[16] Gandy, supra note 3, at 106.
[17] See 18 U.S.C. � 2511(1) (1998).
[18] See 18 U.S.C. � 2701(a) (1998).
[19] Fraser v. Nationwide Mut. Ins. Co., 135 F. Supp.
2d 623, 633 (E.D. Pa. 2001).
[20] Id. at 28, 33.
[21] Bochan v. City of Reno, 932 F. Supp. 1232, 1236
(D. Nev. 1996).
[22] Konop v. Hawaiian Airlines, Inc., [2001] USCA9 15; 236
F.3d 1035, 1044 (9th Cir. 2001) (arguing that acquisition does not have to be
contemporaneous with transmission).
[23 Fraser v. Nationwide Mut. Ins. Co., 135 F.
Supp. 2d 623, 633-35 (E.D. Pa. 2001).
[24] Konop v. Hawaiian Airlines, Inc., [2001] USCA9 15; 236
F.3d 1035, 1045 (9th Cir. 2001).
[25] See 18 U.S.C. � 2511(2)(a)(i) (1998). See also
18 U.S.C. � 2701(c)(1) (1998) (stored communication).
[26] See U.S.C. � 2510(5)(a).
[27] See U.S.C. � 2511(2)(d).
[28] Rodriguez, supra note 5, at 1451.
[29] Rodriguez, supra note 5, at 1452.
[30] See Bochan v. City of Reno, 932 F. Supp. 1232,
1235-36 (D. Nev. 1996).
[31] Andersen Consulting L.L.P. v. UOP, 991 F.
Supp. 1041, 1041 (N.D. Ill. 1998).
[32] Id. at 1042.
[33] Peter Schnaitman, Comment, Building a Community
Through Workplace E-Mail: The New Privacy Frontier, 5 MICH. TELECOMM. &
TECH. L. REV. 177, 177 nn.126-40 (1999).
[34] Rodriguez,
supra note 5, at 1453.
[35] Rodriguez, supra note 5, at 1453 (citing cases using
the context approach: United States v. Harpel, [1974] USCA10 48; 493 F.2d 346 (10th Cir.
1974); James v. Newspaper Agency Corp.[1979] USCA10 34; , 591 F.2d 579 (10th Cir. 1979);
and Deal v. Spears, [1992] USCA8 1412; 980 F.2d 1153 (8th Cir. 1992)).
[36] Rodriguez, supra note 5, at 1453.
[37] Id.
[38] Rodriguez, supra note 5, at 1453 n.85 (citing: Sanders
v. Robert Bosch Co.[1995] USCA4 241; , 38 F.3d 736 (4th Cir. 1994) and Deal v. Spears,
[1992] USCA8 1412; 980 F.2d 1153 (8th Cir. 1992)).
[39] See Briggs v. Am. Air Filter Co.[1980] USCA5 2270; , 630
F.2d 414, 420 (5th Cir. 1980) (employer can intercept business communications);
Watkins v. L.M. Berry & Co., [1983] USCA11 510; 704 F.2d 577, 583-84 (11th Cir.
1983).
[40] See Watkins v. L.M. Berry & Co., [1983] USCA11 510; 704
F.2d 577, 582-83 (11th Cir. 1983).
[41] See Christopher P. Reynolds, Employment
Litigation in the New Millennium - Technology Considerations, MONDAQ BUS.
BRIEFING, June 29, 1999, at n.28-29 (citing H. McNeil & R. Kort,
Discovery of E-Mail: Electronic Mail and Other Computer Information Should Not
Be Overlooked, The Or. St. B. Bull., Dec. 1995).
[42] See Blakely v. Cont'l Airlines, 751 A.2d
538, 549 (N.J. 2000). But see Owens v. Morgan Stanley & Co., 96 Civ.
9747, at 6 (S.D.N.Y. 1997) (noting that objectionable e-mail alone is not
sufficient to sustain a claim of a hostile work
environment).
[43] See Wendy Leibowitz, As E-Mail Use Expands -
Case Law Follows, N.Y.L.J., July 20, 1999, at 3.
[44] Allison R. Michael & Scott M. Lidman, Technology
Advances Bring Increased Monitoring, EMP. L. STRATEGIST, Mar. 2001, at 2.
[45] Rodriguez, supra note 5, at 1457.
[46] Rodriguez, supra note 5, at 1457 (quoting Larry O.
Gantt, II, An Affront to Human Dignity: Electronic Mail Monitoring in the
Private Sector Workplace, 8 Harv. J.L. & Tech. 345, 358 (1995)).
[47] See Smyth v. Pillsbury Co., 914 F. Supp.
97, 101 (E.D. Pa. 1996).
[48] Gandy, supra note 3, at 109.
[49] See 18 U.S.C. � 2511(2)(d) (1998).
[50] See Watkins v. L.M. Berry & Co., [1983] USCA11 510; 704 F.2d
577, 581 (11th Cir. 1983).
[51] See id. at 581.
[52] See Deal v. Spears, [1992] USCA8 1412; 980 F.2d 1153, 1155-56 (8th
Cir. 1992).
[53] See Bochan v. City of Reno, 932 F. Supp
1232, 1236 (D. Nev. 1996).
[54] Rodriguez, supra note 5, at 1460.
[55] FED. R. CIV. P. 34(a).
[56] See Hall Adams, III et al., E-Mail Monitoring in the
Workplace: The Good, the Bad and the Ugly, 67 DEF. COUNS. J., Jan. 1, 2000,
at 32 n.43-44.
[57] See Christopher P. Reynolds, Employment
Litigation in the New Millennium - Technology Considerations, MONDAQ BUS.
BRIEFING, June 29, 1999, pt.
[58] Id.
[59] See H.R. 1900, 103d Cong. (1993); S 984, 103d Cong.
(1993).
[60] See H.R. 1900, 103d Cong. �� 4(B), 5(B)(3), 7
(1993).
[61] Jarrod J. White, E-Mail-Work.Com/Employer Monitoring
of Employee E-Mail, 48 ALA. L. REV. 1079, 1101 (1997).
[62] Rodriguez, supra note 5, at 1465 (introducing
proposals such as "reasonable" monitoring and necessity of showing
"compelling
business interest").
[63] Gandy, supra note 3, at 119.
[64] Id. at 119.
[65] Id. at 134.
[66] Id. at 135.
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