July 2009

It’s amazing what people will put in their emails, even after they have been warned by their lawyers.  There have been a number of cases I have been involved in where an employer has been able to access emails from an employee’s web-based hotmail account that show he or she is actively violating a non-compete or even sending work to a competitor.  The question is, can an employer access an employee’s web-based email?

A recent law.com article investigated a number of decisions arising from use of the Stored Communications Act. The SCA creates a criminal offense and civil liability for whomever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and by doing so, “obtains, alters, or prevents authorized access to a wire or an electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 27.01.  The decisions vary.

The article suggests a robust electronic communications policy  will go a long way to protect the employer, but it is unlikely that any employer has a policy that would allow them to obtain and use an employee’s password in order to access their web-based accounts. Obviously, once the employer uses the emails in the litigation, it will become obvious that they have utilized the password to obtain that information.  The employer could consider simply requesting the communications through normal avenues of discovery.  If you are going to use such evidence be prepared for the ramifications.

(H/T to Jon Hyman of the Ohio Employer’s Law Blog)