There is no statutory protection against this abuse.The FBI conducted an investigation into the Lower Merion incident and concluded that no law had been broken.
The actual test of whether an employee has a reasonable expectation of privacy is who owns the equipment used to transmit the message. There are two areas in which there remains some legal protection for workplace privacy. § 2510, employers are given an exemption for calls made “in the ordinary course of business.” Courts interpret this to mean that employers can eavesdrop on all business telephone calls but cannot listen to or record messages it knows are personal.
If the equipment belongs to the employer, the employer has the right to monitor anything and everything on it. The first is personal conversations that occur at work. Under federal wiretapping laws, it is illegal to listen to or record conversations without the consent of the parties. In theory, employers that monitor employee telephone calls are required to hang up when they realize the call is personal.
Many of these laptops would be inside employees’ homes; many would be in bedrooms.
It is impossible to determine how often this abuse occurs.
While it seems unlikely that employers would commit such an egregious abuse, it is not unlikely that individual IT employees would sometimes do so.
It is an open secret among IT professionals that they read other employees’ e-mail for fun.
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In practice, this means little because employers are not required to notify employees that they are being recorded and employees are unlikely to discover the hidden microphone.
Video surveillance is governed by common law, using the “reasonable expectation of privacy standard.” Courts have consistently held that employees have a reasonable expectation only in bathrooms and locker rooms.
Lewis Maltby is president of the National Workrights Institute (formerly the ACLU’s national employment rights project). 2619 (2010), the Supreme Court held that a police officer had no expectation of privacy in the text messages he sent over an employer-issued device, even though his commanding officer promised him his messages would not be monitored.