Electronic Mail Privacy in The Workplace: E-Mail Shows Need for Legislative Action, But Opportunity May Have Been Missed

Abstract

One of the most rapidly evolving areas of employment law is privacy. Tech­ nological innovation in the workplace continually challenges our conceptions of privacy. E-mail is the latest tool to exceed the grasp of existing privacy law. The common law's inability to adapt to e-mail exemplifies the need for legislative action to protect employee privacy. This article explores possible legislative solutions and attempts to identify procedures that reflect the core values of those solutions. One of the most rapidly evolving areas of employment law is privacy [1]. The right to privacy in general is a young concept, "discovered" in 1890 by Samuel Warren and Supreme Court Justice-to-be Louis Brandeis [1, 2]. The authors of The Right to Privacy were alarmed by the "modern enterprise and invention" of turn-of-the-century technology, particularly the rapid dissemination of informa­ tion via the burgeoning field of mass communication [2]. The "instantaneous photographs and newspaper enterprise" threatened not only to "proclaim [ ] from the housetops" what was "whispered in closets" and ruin reputations, but also, Brandeis and Warren feared, to invade the "spiritual" value of the "inviolate personality" [2, p. 205]. Thus, invasion of privacy would cause damage beyond reputation to affect "the estimate of [one's] self and upon his feelings" [2, p. 197]. Since then, legal scholars have struggled to categorize the bundle of interests contained within the "inviolate personality." Dean Prosser reduced the privacy