Privacy Issues in the Workplace

After reviewing the legislative history and amendments to Penal Code section 502, the court held that “the Legislature did not intend that subdivision (c)(5) could only be applied to external hackers who obtain unauthorized access to a computer system.” 459 Rather, “[i]t appears that subdivision (c)(5) may properly be applied to an employee who uses his or her authorized access to a computer system to disrupt or deny computer services to another lawful user.” 460 The court also found that case law supported the application of section 502(c) to employees, “in appropriate circumstances.” 461 Penal Code section 502(c) prohibits knowingly introducing, without permission, a contaminant or lock on a computer, computer system, or computer network for the purpose of restricting an authorized user from accessing the computer, computer system, or computer network. The second is the California Privacy Act (CPA) 462 which prohibits the willful attempt to learn the contents or meaning of communications in transit over a wire. 463 As with the federal law, the CPA only applies to communications during transmission; once an individual receives the communication, the CPA no longer protects it. The consent exception to CPA goes beyond that of federal law because it requires the consent of “all parties to the communication.” The CPA makes it a crime to eavesdrop or record any confidential communication without the consent of all participants to the communication. 464 A confidential communication is any communication carried on in circumstances reasonably indicating that any party thereto desires the communication to be confined to the parties. The prohibition also applies to prevent any of the participants from recording any part of the communication. 465 These sections do not apply to law enforcement agencies in the context of criminal investigations. Also, no person who was not a party to the conversation may disclose the contents of a telegraphic or telephone communication to another person without permission of the person to whom the message was addressed. 466 In 2017, Penal Code section 632.01 was added, which extended Penal Code section 632 to individuals who “aid and abet” the intentional disclosure or distribution of the contents of a confidential communication with a health care provider that was obtained by that person in violation of Penal Code section 632. This provision applies to disclosure “in any manner, in any forum, including, but not limited to, Internet Web sites and social media.” In reviewing challenges to an employer’s actions in monitoring an employee’s electronic communications, California courts determine whether the employee has “a reasonable expectation of privacy” in the electronic communication in question.

TBG Insurance Services Co. v. Superior Court of Los Angeles County An employer dismissed an employee for violating the company’s computer policy by repeatedly accessing pornographic Internet sites while at work. The employee filed a wrongful termination action against the employer. During the litigation, the employee argued that the employer did not have the right to inspect an employer-owned computer the employee had primarily used at home for personal purposes. The employee reasoned that the computer contained significant personal information, including tax information and family

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