Simply stated, courts in the United States tend to favor the employer in workplace-surveillance cases. For that reason, employees should always use good judgment when logging onto the Internet and sending e-mails. Choose your words carefully; you never know who might read your correspondence.
Under the Electronic Communications Privacy Act (ECPA), electronic communications are divided into two groups:
- Stored communication
- Communication in transit
Under the law, electronic communication in transit has almost the same level of protection as voice communication, meaning that intercepting it is prohibited. Accessing stored electronic communication, such as e-mail sitting on a server waiting to be sent, is not illegal. The courts have ruled that since the e-mail is not physically traveling anywhere -- is not "in transit" -- it does not have the same level of protection.
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