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Blurring of Work, Personal Tech Drives Privacy Disputes

January 30, 2015

​Fenwick & West electronic information management chair Robert Brownstone spoke with The Recorder about privacy lawsuits over employers accessing former employees' email accounts and other personal information on work computers.

To avoid being sued and strengthen their litigation position, Brownstone advises companies to always spell out their privacy policy for employees.

"What I work with clients on is being very, very clear in the written policy that there's no expectation of privacy," he said, "and it extends to any and all information passing through, received, stored or transmitted on any network device not only provided by the employer, but cost-reimbursed or supported by the employer."

However, Brownstone discourages clients from explicitly stating that they can log in to employees' personal email accounts.

Brownstone also commented on the viability of the federal Wiretap Act claim in a lawsuit filed by a former Southern California teacher against his school district, which accessed his personal social media accounts after he was accused of stalking and harassing underage students.

Because the Wiretap Act was passed in 1968 and last updated in 1986, courts have often interpreted its language as applying to telephonic but not email snooping.

However, Brownstone said, "It's possible that over time judges have grown impatient waiting for Congress to update the rules." 

The full article is available through The Recorder website (subscription required).