Employers’ ability to monitor e-mails sent by employees at work is a hot topic in privacy law and is being addressed by a growing number of courts around the country as the law works to catch up with technology. In Chicago, the Seventh Circuit Court of Appeals gave reason to view this issue from a different perspective, finding that an IRS agent violated the Wiretap Act by secretly setting up his boss’s e-mail account to forward all received e-mail messages to his own account. United States v. Szymuszkiewicz.

David Szymuszkiewicz worked as an IRS agent and his job required that he visit delinquent taxpayers’ homes. After losing his driver’s license for driving while drunk, he became concerned that he might lose his job and decided to secretly monitor all e-mails sent to his supervisor. The Wiretap Act makes it unlawful to “intercept” electronic communications. While Szymuszkiewicz argued that he did not violate the Act because he did not intercept any communications during transmission as one might intercept a telephone call by tapping a phone line, the Seventh Circuit rejected this argument. It held that an interception need not be contemporaneous, and that Szymuskiewicz’s use of the auto-forward feature in Outlook met the statutory definition. The court also clarified that its analysis applies equally to digitally transmitted telephone calls, which are sent in a manner similar to e-mail transmissions.

While the decision is a reason for caution, it does not mean that employers must abandon their existing communications policies. Courts have ruled that employers are not subject to liability under the Wiretap Act for monitoring employees suspected of violating company policy if the monitoring serves to protect the company’s “rights and property.” Also, employers have a legitimate argument under the Act that they are not liable for monitoring employee communications if the monitoring occurs in connection with “an activity which is a necessary incident to the rendition of [the employer’s] service.”

Nevertheless, employers should act carefully when monitoring employees’ electronic communications, as this area of the law is developing rapidly and the rules vary from jurisdiction to jurisdiction. Among other things, employers should ensure that they have up-to-date policies placing employees on notice that their communications may be stored, monitored and reviewed, and should strongly consider requiring all employees to sign an acknowledgement and consent to such policies as a condition of employment.