E-MAIL PRIVACY IN THE WORKPLACE
Richard was an independent insurance agent who sold policies for a major insurer on an exclusive basis. After a period in which there was some dissatisfaction and acrimony on both sides of the relationship, the company terminated its agreement with Richard. In subsequent litigation brought by Richard, the parties disagreed as to the reason for the termination. The company's position was that it had fired Richard for disloyalty. How the company came by its evidence of disloyalty led to a separate element of the ensuing lawsuit.

When other events raised suspicions about Richard, an attorney for the company and a systems expert searched the company's main file server for any e-mail to or from Richard that caught their attention because of the e-mail headers. There, they claimed to find two messages from Richard to a competing insurance company that essentially asked if the competitor might be interested in acquiring some clients who supposedly were unhappy with Richard's company.

Richard argued to no avail that his former company violated his rights under the federal Electronic Communications Privacy Act (ECPA). First, he asserted that there was a violation of that part of the law that prohibits "intercepts" of electronic communications such as e-mails. However, courts, including the one hearing his case, have reasoned that an intercept can only occur contemporaneously with the electronic transmission. The company did not access Richard's e-mails as he was sending them, but read them later, so it did not "intercept" them.

The second claim was brought under a different part of the ECPA, which creates liability for intentionally accessing without authorization a facility through which an electronic communication service is provided, and thereby obtaining access to a communication while it is in electronic storage. "Storage" in this context means temporary, intermediate storage, or backup storage. A related part of the law makes an exception from liability for the person or entity providing the communications service. Since Richard's e-mails were stored on a system controlled and administered by his company, the company could not be liable for accessing the e-mails.