NY Judge Dismisses Charges Against Employer Who Spied on Personal Emails

Published June 9, 2010

A New York criminal court ruled that an employer could not be charged with unauthorized use of a computer after secretly accessing the personal email accounts of his employees.

Judge Marc J. Whiten ruled in May that Manhattan plastic surgeon Andrew Klapper would not face the misdemeanor charge after installing keystroke-tracking software on an office computer and using that software to access the Web-based Yahoo email accounts of his employees.

Whiten wrote in People v. Klapper that “the concept of internet privacy is a fallacy upon which no one should rely,” and that reading another person’s emails are equivalent to reading “a postcard, as they are less secure and can easily be viewed by a passerby.”

“It is today’s reality that a reasonable expectation of Internet privacy is lost, upon your affirmative keystroke,” Whiten wrote.

Conflicting Decisions
Whiten’s dismissal of charges against Klapper came just weeks after the New Jersey Supreme Court ruled a Garden State nursing home company was wrong to access an employees personal email account on company computers.

Manhattan plastic surgeon Andrew Klapper installed a keystroke tracker on an office computer, gaining access to an employee’s personal web e-mail account. He was charged with unauthorized use of a computer. The e-mails he forwarded contained “office gossip.”

No Expectation of Privacy
Dennis Van Berwyn, founder of Raleigh, North Carolina-based Web site-hosting company ApexTek.com, said one must never assume any online privacy exists in the workplace.

“There should be no expectation of email privacy at work,” Van Berwyn said. “I’m old school when it comes to work time. In almost any case, the expectation of privacy at a work location is not reasonable.

“As a part of a working arrangement, employees should not have that expectation,” he added, saying sending personal emails at work “technically constitutes stealing from an employer.”

“If there are email policies at work, they must be adhered to,” Van Berwyn said. “In the absence of a specific policy, employees should exercise reasonable judgment in regards their time ‘on the clock.’ “

Emails ‘Not Like a Postcard’
Jarrod Dornfeld, a consultant for the University of Iowa Computer Systems Support Department, disagrees with Whiten’s decision.

“I would definitely say that e-mail is not like a postcard,” Dornfeld said. “That would basically defeat the whole purpose of sending it to specific people and not the whole workplace. I feel like that’s a pretty grievous invasion of privacy.

“Honestly, I have no idea why the judge sided with the physician,” he added. “Maybe it’s not illegal, but you’d have to be a pretty questionable boss to do that type of thing.”

Company Email Monitoring Necessary
Braden Cox, policy counsel for Washington, DC-based NetChoice said employers must retain the right to monitor how their employees use company computers — even if that ropes in the use of email.

“Employers have to be able to monitor the e-mail that is going over their networks,” Cox said. “It could be that an employee is stealing trade secrets. There could be allegations of sexual harassment or other harassment. Employers have a duty to protect themselves and other employees.

“I think that a lot of times what gets confused in the whole debate about privacy, including privacy in the workplace, is who is doing the monitoring or who is accessing the email,” he added.

Clarifying Cloudy Policies
Cox says Americans often confuse the rights of private firms to monitor their employees activities in the workplace with restrictions on government spying.

“With the police, we have the Fourth Amendment in the Constitution to protect us,” Cox said. “But when it is private actors, including your employer, we really only have employee contracts and policies and procedures of the employer to protect us.

“There are certain exceptions when employer actions are so outlandish that courts have recognized public policy exceptions that make their behavior illegal, but those exceptions are rare and that is true whether it’s offline or online,” he added

Krystle Russin ([email protected]) writes from Texas.

For more information …
“The People of the State of New York v. Andrew Klapper”; Criminal Court of the City of New York, New York County; Judge Marc J. Whiten: http://www.nycourts.gov/reporter/3dseries/2010/2010_20150.htm