In the typical U.S. workplace the employer owns the computer network, which it supplies to employees exclusively or primarily for work-related purposes. Employees generally receive little privacy protection in their workplace email and Internet activity. This article from The Privacy Advisor discusses a recent decision by the Israeli National Labor Court that expands employee privacy in the workplace and establishes a nuanced framework to guide future cases. The article’s author says the decision demonstrates “a general trend of increased sensitivity by the courts outside the U.S. to e-mail privacy.” The decision obviously does not bind any U.S. court, but it does provide a lens through which to evaluate our blunt-instrument approach to these issues.
While not long the article’s description of the National Labor Court decision contains too much information to describe here in detail. Briefly, the decision defines four different types of employee mailboxes and establishes monitoring and reviewing rules for each: “‘professional mailbox[es]’ . . . provided by employers for professional purposes only,” “‘mixed mailbox[es]’ . . . provided by the employer for both professional and personal purposes, ” “employer-provided personal mailbox[es],” and “employees’ private mailbox[es].” Employers must inform employees of their limited rights to use professional mailboxes and employers right to monitor such mailboxes, must obtain employees’ general consent to monitor such mailboxes, and yet “is nevertheless prevented from reviewing [professional mailboxes’] content without the employee’s specific consent,” even though “the employee is not authorized to engage in [personal] correspondence.” In contrast, U.S. law does not constrain employers’ rights to review the contents of such professional mailboxes. The decision imposes greater restrictions on employers’ power to monitor and review the contents of the other types of mailboxes, ending here: ‘[m]onitoring of  private mailbox[es] by the employer is prohibited without a court order.”
We will see whether U.S. courts join this general trend.