According to Craig Carpenter, an attorney who works with Mirapoint, the secure messaging technology company, the decision by the appeals court was appropriate, given the facts. "The purpose of this defendants wiretapping actions were likely illegal in nature," Carpenter told Ziff Davis Internet.Carpenter raised the question of whether the decision could be applied to corporate networks, and said the ruling is unclear on that issue. But an employment law expert, Brenk Johnson, a partner with Winstead, Sechrest & Minick, based in Dallas, doubted that the ruling could be applied to spying on employee e-mail. "We tell our clients to tell their employees that the company owns the computer and the infrastructure used to maintain it," Johnson told Ziff-Davis Internet. "So, I would take the position that the employer is a joint intended recipient of the e-mail. Employees are put on notice that their e-mail may be readso they have to presume that the employer will be looking at it." Click here to read more about security in the e-mail management industry. A recent survey conducted by Proofpoint shows that 63 percent of all companies employ staff or plan to employ staff to read employees e-mail. The survey, conducted in May by Proofpoint of 332 IT decision-makers at U.S. enterprises with more than 1,000 employees found the following:
More than a third of companies36.1 percentemploy staff to read or otherwise analyze outbound e-mail. Forty percent of companies with more than 20,000 employees do this.
Companies estimate that almost 1 in 4 outgoing e-mails24.7 percent contains content that poses a legal, financial or regulatory risk.
More than 1 in 4 companies27.1 percenthave terminated an employee for violating e-mail policies in the past 12 months.
There has not been a lot of litigation by employees against former employers alleging invasion of privacy over the reading of e-mail, but those cases that have gone to court have usually wound up in favor of the employer, said Johnson, the employment law attorney.
According to Vatis of Steptoe & Johnson, there will be more to come from this case in Boston on e-mail wiretapping.
"The court did not make clear the interaction between the Wiretap Act and the companion Stored Communications Act, leaving open the possibility for further confusion down the road, particularly about which law governs the governments attempts to get access to emails as part of a criminal investigation," Vatis said. "So this is probably not the last word on these laws."
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The decision has "broad" potential application, he said, including illegal spying on e-mail, voice mail and VOIP (voice over internet protocol) calls.