Much has been written about the widespread abusive practice of e-mail and Internet surveillance by employers in the American workplace. At present, U.S. employees in the private workplace have no constitutional, common law or statutory protection against abusive e-mail monitoring practices. In effect, American workers wave goodbye to their right to privacy as soon as they log onto their workplace computer because U.S. courts have formalistically applied a property rights regime to electronic surveillance of e-mail and Internet usage. This article uses the device of a hypothetical multi-national company to compare the diametrically opposed U.S. property-rights approach with the human rights approach to the European law of monitoring employees’ e-mail and Internet usage. Part I of this article reviews the case law and statutory developments for e-mail eavesdropping in the U.S. workplace.
At present, American employers can lawfully intercept, search, and read any messages stored in workplace computers because courts have ruled that employees have no expectation of privacy in workplace electronic communications. Part II examines the European human rights tradition that accords workers a privacy expectation in the workplace. We explain the evolution of the human rights approach as a function of a wider social movement of worker’s co-determination in Europe. This part of the article next examines statutory and caselaw development from the Council of Europe and the European Union, as well as case studies of e-mail privacy rights in the United Kingdom and France, representing the common law and civil law traditions.
In Part III, we propose that Congress enact the Electronic Monitoring Act of 2005, which is a proposed statute that will harmonize U.S. workplace monitoring law with European law. The model statute will provide U.S. workers with one-time written (?) supplemented by electronic notice of employer monitoring each time an employee boots up her computer. In addition, we propose civil remedies for non-compliance with the statute. The long-term impact of this model statute will be to appropriately balance the employers’ need to monitor with employee privacy. The long-term impact of the statute in the global economy will be to give American companies a competitive edge in cross-border transactions and reduce their liability costs. Our proposed Federal Electronic Monitoring Act is only the first step to harmonizing U.S. employment law with the rights that European employees have in an increasingly borderless global economy.
