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In 1980, Billy Joel sang about Sleeping With The Television
On. Thirty two years later, having had Billy Joel
melodies in my head all night, I'm blogging about Leaving With
The Work Computer On. (Best I got this Monday
morning.) After a brief early-summer hiatus,
there's a very interesting decision that was issued a few weeks
ago in the case of Marcus v. Rogers (Superior Court of New
Jersey, 6/28/12).
The case was brought by a group of teachers in the Saddle Brook
School District in New Jersey. The school made computers available
in a central school location, and teachers sometimes used them to
check personal social media accounts. Defendant was
checking his e-mail on a computer, and accidentally bumped the
mouse of an adjacent computer, which removed that computer's
screensaver and revealed the e-mail inbox of a Yahoo account
belonging to another teacher (who neglected to log out before
leaving the room).
The defendant noticed that the subject line of the other
teacher's e-mail referenced defendant's name, and he
clicked on that e-mail string, read the e-mails and printed them to
use at a future meeting being held to discuss an ongoing
work-related dispute that was the subject of the e-mails. The
other teacher then filed a lawsuit under various statutes that
address the unauthorized access to electronic communications.
The case ultimately went to a jury, which determined that the
defendant did not act unlawfully. The standard at issue on the
appeal was whether the defendant "knowingly accessed" an
e-mail account facility "without authorization", or in a
manner that "exceeded an authorization to access that
facility."
The court first held that, as a matter of law, the defendant did
not access the e-mail account facility without authorization
because the index to the inbox was already displayed on the screen
for anyone to see. Next, the court found that the jury
properly determined that the defendant did not exceed any authority
because there was "tacit authorization" to access the
account once it was left open (whether you agree or disagree with
that finding, that is presumably the province of a jury of
defendant's peers).
Employer Take Away: What should you
as an employer take away from this
development?
One the one hand, it seems like it would be an easy set of
facts. Sort of like the schoolyard kid who says "sorry,
you left the ball here, so now it's mine."
But, these facts present complicated issues falling within often
inter-related and inter-dependent statutes that seek to balance
notions of rights to privacy and rights to monitor.
The Marcus case involved co-workers, but the message is
clear for employers. Have appropriate policies in place
when it comes to monitoring an employee's computer (even an
employee's personal accounts being viewed on an office
computer). And carefully consider the efficacy of
reviewing an employee's social media programs, even when the
employee is sleeping with the television on.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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