Privacy Issues in the Community College Workplace

incompetence, mismanagement or other work-related misfeasance of its employees. 409

Employers do not have the right to eavesdrop on an employee’s private telephone conversations. However, as explained below in greater detail, employers do have the right to control and monitor their electronic communications resources. To do so, employers must put their employees on notice by adopting a written policy that includes specific language advising employees that all electronic communications, including e-mail and text messages, sent and received on the employer’s equipment, including cellular telephone, pagers, and other electronic devices are the employer’s property and are subject to monitoring. Moreover, employers must consistently apply their written policy.

2. F EDERAL S TATUTES P ROHIBIT I NTERCEPTION OF E LECTRONIC T RANSMISSIONS

The Federal Crime Control and Safe Streets Act of 1968 (“Wiretap Act”) 410 makes it illegal to intentionally intercept any wire, oral or electronic communication without consent. The Electronic Communications Privacy Act (“ECPA”) of 1986 amended the 1968 Wiretap Act. It prohibits intentional interception of electronic communications and disclosure or use of intercepted electronic communications during transmission (before the communication is open or stored). 411 It requires the presence of some federal nexus in its application (such as “the defendant acting under the color of state law or the recordings made through facilities of a communication carrier engaged in the transmission of interstate or foreign communications”) to be constitutional as applied. 412 The ECPA also created the Stored Communications Act (“SCA”), which prohibits intentional and unauthorized access of a facility providing electronic communication service to obtain “access to a wire or electronic communication while it is in electronic storage in such system.” 413 The SCA also prevents “providers” of communication services from divulging private communications to certain entities and/or individuals. 414 The SCA provides privacy protection to communications held by two types of providers: electronic communication service (“ECS”) and providers of remote computing service (“RCS”). An ECS provides its clients with wire or electronic communications services, such as e-mail. The Stored Communications Act prohibits an ECS from releasing the contents of a communication in electronic storage except to the sender or recipient of the communication. On the other hand, an RCS provides its clients with computer storage or processing services “by means of an electronic communications system.” For example, subscribers, such as banks or hospitals, may contract with an RCS for computer processing or storage of records. While the information is communicated electronically for storage or processing to an RCS, providing communications services is not the main purpose of an RCS. Under the Stored Communications Act, an RCS may release the contents of a communication with the lawful consent of a subscriber. Thus, for example, if an employer uses an RCS to store certain employee files, the employer as the subscriber has the right to access those employee files without the consent of the employee.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 134