Your e-mail is not private

Even if your workplace turns a blind eye to policies prohibiting personal use of e-mail, user beware. Your words could be reviewed by your employer-or even the public.
Sunday, April 4, 2004 | 12:00 a.m. CST; updated 12:20 p.m. CDT, Sunday, July 20, 2008

Kathy Love’s e-mail wasn’t a dirty joke, an ad for a new drug or a chance to win a million dollars. It was a lunch invitation for a friend and expressed her concerns about the direction of her employer, the Missouri Department of Conservation.

The content of Love’s e-mail didn’t attract any immediate attention. But the header for her message — “Happy New Year” — did, and about two weeks later, on Jan. 26, she was told it was the reason she was being fired.

Being fired over a personal e-mail may seem like an invasion of privacy, but when working on a government computer, users check their privacy at the door.

“Information generated through these resources, including messages transmitted or stored, are the sole property of the Department,” states the conservation agency’s employee handbook. “Staff should have no expectation of privacy in anything they create, store, send or receive using the Department’s computer equipment, and waive any right to privacy upon signing on to the Department’s system.”

Break the rules and the e-mail police could be at your door.

“You really need to think of e-mail as the electronic equivalent of DNA evidence,” said Nancy Flynn, executive director and founder of the ePolicy Institute, a consulting and training firm in Columbus, Ohio, that studies Internet and e-mail use. “It’s exactly those messages that one employee sends to another that are likely to be real casual, off the cuff and contain jokes and language that would be likely to trigger a lawsuit.”

And the spyware that alerts real people to screen and evaluate certain e-mails is on the job 24 hours a day at the conservation department and other state agencies. The surveillance is part of efforts to keep spam, or junk e-mail, in check. But as Love found out, it can be used for other purposes.

About 90 percent of American workers send personal e-mails from their employee accounts, according to a 2003 survey by the American Management Association, ePolicy and Clearswift Software. And while half of U.S. employers monitor incoming e-mail, 48 percent fail to educate workers about their e-mail policies, the survey found.

The federal Electronic Communications Privacy Act of 1986 gives employers — public and private — the right to monitor all electronic communications, whether e-mail, telephone or fax.

Denise Lieberman, legal director for the Eastern Missouri chapter of the American Civil Liberties Union, said employees have no expectation of privacy at work — e-mail or otherwise.

“Essentially, nothing in your workspace belongs to you,” Lieberman said. “An individual has no rights with respect to their work computers and the employer has the right to monitor and set rules for their use. Your boss has the right to go through your desk drawers because they’re not yours because they belong to the company. That’s sort of a hard pill for a lot of people to swallow.”

Doug Young, chief of the conservation department’s Information Technology Section, said that close to 300 pieces of spam are sent to agency computers each day. The department’s filter is designed to look for phrases that contain profanity and words such as Viagra, free and seasonal phrases such as Happy New Year that spammers use as attention-getters.

Such e-mails are intercepted by the department’s filter, read by an information technology staffer and either trashed, in the case of spam, sent on their way or sent to a supervisor. At the Department of Conservation, a staffer checks intercepted e-mails three times a day.

“We don’t go poking around in someone’s e-mail,” Young said.

Love had been with the Department of Conservation since 1986, and during her time worked as writer and editor as well as administrator of the Outreach and Education Division. Her work could be found in Missouri Conservationist, the department’s widely circulated magazine.

Her “Happy New Year” e-mail expressed concerns with the department’s management, especially the dissolution of the Natural History Division.

“I get calls weekly from staff who feel like they’re being persecuted,” Love wrote. “They say they aren’t given any direction, but if they take the initiative, they’re slapped down.”

The e-mail raised the possibility of seeking support for her cause from an organization called Missouri Votes Conservation.

The conservation department’s employee code of conduct states, “There is zero tolerance for conduct that interferes with Department operation, brings discredit to the Department or is offensive to the public or co-workers.”

Joel Vance, recipient of the e-mail that led to Love’s termination, worked at the Department of Conservation from 1969 until he retired in 1991. He describes Love as a dedicated worker whose heart was in the right place.

“The execution of the Natural History Division was unpardonable and is one of many examples of how the Department has become autocratic, unresponsive and downright paranoid,” Vance wrote about Love’s firing in an e-mail that went to friends and several media representatives. “The reaction to Kathy’s e-mail and the mere fact that they are screening employees is frightening. This is the kind of government that exists in totalitarian states.”

Vance believes that Love’s e-mail was acceptable. But, he said, “Terminating her was like killing the messenger,” he said. “And that’s just not right. While I certainly don’t agree with what happened to Kathy and with some of the direction, MDC still is the best conservation agency in the country.”

Love referred inquires to her lawyer, Carla Holste in Jefferson City.

Bill Powell, a Columbia lawyer with expertise in media law who represents the Outdoor Writers Association of America, thinks cases like Love’s are an example of the evolution of conversation: Words that used to be exchanged face to face by the water cooler are now being typed and archived.

“People letting their communication evolve this way are actually running a great risk to say what’s on their minds,” Powell said.

“Employees need to be educated so they understand, you’re not allowed to use the e-mail system as though it were an electronic water cooler,” said Flynn of the ePolicy Institute. “It’s just not a safe way to communicate any personal or inappropriate messages. Now with e-mail, you have a written record. That’s the danger.”

E-mails created or stored on government computers — whether created by elected public officials or otherwise — are public records under the state Sunshine Law, said Jean Maneke, attorney for the Missouri Press Association.

“If it’s retained by a public body, it’s a public record,” she said. “It doesn’t matter whether it’s a secretary or public official, because we’re not talking about who did it, we’re talking about where the record is retained.”

The only difference between using a telephone and e-mail to communicate is that e-mail creates a record, she said.

Sandra Davidson, an MU communications law professor, said employees who work for either government or a private business should be careful with e-mail. “When you’re using e-mail, and it belongs to your employer, watch out,” Davidson said.

Some feel state workers have little recourse when they find themselves in trouble with the e-mail police.

Vance said he and some colleagues feel as if they are all walking around with targets on their backs.

Al Buchanan has worked at the department of conservation for 27 years as a research scientist and said he has no problem with checking his privacy at the door.

Buchanan said that he was chastised once for something he wrote in an e-mail, but that was the end of it.

“They have the right to say what you can use it for,” Buchanan said, “and I don’t have a problem with that.”

Denise Garnier, assistant to the director of the conservation department, said she hasn’t seen any indication of a chilling effect among agency employees. “We certainly believe our employees are entitled to their opinion,” she said.

Garnier refused to comment on Love’s firing, but said that “electronic communication, in a variety of settings, has been the cause of disciplinary action in the past.”

Letting employees express critical opinions is key to keeping them loyal, Powell said. “Squelching that is a bad thing.”

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