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Sorry, Dear, I Can't Email You Now

If you think that email to your spouse (or priest, lawyer, or accountant) was entitled to some privacy, think again if you sent the email via your employer’s computer. 

Have you read that notice that you click through every morning when you log on to the computer at the office?  Consider that if the notice warns you that your use of the computer may be monitored, you may be waiving any expectations of confidentiality in the email you send or receive over that computer.

A former Deputy Sheriff in New York has learned that his email to his wife about a PSP electronic gaming device was not protected by the marital privilege from government use in trying the Deputy Sheriff on an extortion charge.  In United States v. Etkin, 2008 U.S. Dist. LEXIS 12834 (S.D.N.Y. Feb. 20, 2008), the court ruled that Mr. Etkin’s email to his wife was not a privileged marital communication because he sent it from his work computer.  A flash-screen notice appeared on the computer every time he logged on and stated that use of the machine could be monitored.

Deputy Sheriff Etkin was arrested by FBI agents while he was in a State Police vehicle.  The agents seized a portfolio bag in the car; the bag had file folders of materials from Mr. Etkin’s work and included a printout of an email exchange he had with his wife.  The email referred to his expectation that a person facing a parole revocation hearing would be delivering “a brand new PSP to the Sheriff Dept.”  Mr. Etkin was indicted on a Hobbs Act extortion charge, and the government informed his counsel that it expected to use the PSP email at trial.

The email had been sent from Mr. Etkin’s work computer.  At every log-on, a notice was displayed that any use of the employer’s computer system constituted express consent for authorized personnel to monitor and copy any data on the system for use or disclosure without prior notice.  Employees were also warned in the log-on notice that they had no expectation of privacy in using the system or in the data on the system. 

The court found that Mr. Etkin thus knew that any email to his wife from his work computer could be read by a third party.  The court concluded that “employees do not have a reasonable expectation of privacy in the content of their work computers when their employers communicate to them via a flash-screen warning a policy under which the employer may monitor or inspect the computers at any time.”