Every American is aware of the Fourth Amendment to the Constitution which prohibits unreasonable searches and seizure. But, in 1792 when the fourth amendment was ratified, none could envision the need to address the voluntary or compelled disclosure of information stored online. For more than two decades, government bodies and the courts have struggled to determine the protections afforded to information communicated or available electronically. Expectation of privacy and protection are automatically lost when the security of information is entrusted to a third party such as an Internet Service Provider (ISP). The ISP can be compelled to reveal the contents of an email or files stored on a server when presented with certain types of warrants or subpoenas.
The Stored Communications Act (SCA) was passed in 2012 to protect users whose electronic communications are stored by an ISP or electronic communications service. The SCA addresses the disclosure of ‘stored wire and electronic communications as well as transactional records held by third party ISPs.
The SCA can be summarized as follows:
Implications of the SCA for Employers:
Employers cannot monitor or access their employees’ personal social media accounts, intentionally and without authorization. Let us look at some cases where the SCA was invoked.
Online modes of communication and transmission of information are still evolving on a nearly daily basis. It is difficult to reach a clear consensus on the issue of privacy, especially when juxtaposed with the anxiety employers feel about their brand image and reputation. All employers need to tread carefully and avoid making any unauthorized attempts to access employees’ private communication!
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