New York Business Lawyers

In a New York Business Lawsuit Alleging Criminal Misconduct, a Judge Declares Online/Internet Privacy is Dead

by / Wednesday, 19 May 2010 / Published in Technology & eCommerce

Privacy Rights in Employee Emails and New York Business Law Suits

New York, like many states, has statutes for better or worse aimed at computer conduct.  A recent case in New York criminal court addressed whether an employer had run afoul of Penal Law 156.05 (People v. Klapper, — N.Y.S.2d —, 2010 WL 1704796 (N.Y.City Crim.Ct., April 28, 2010)).  While taking on the matters at hand, the Judge made some seemingly superfluous and loaded statements about the state of online and internet privacy.

There, the employer used key logging software to snoop his employee’s machine (which was provided by the employer) and, among other things, recover the employee’s personal email account password.  He then accessed the account and retrieved certain messages.  Anyone who has minimal knowledge of hacking and hacking techniques has come across the term “key logger”.  That is essentially background software that can record keystrokes on a computer, particularly those for email and other account passwords.

The court dismissed the complaint on the grounds that the employer had no notice that the computer or any parts thereof were restricted or off limits.  Moreover, the court took note of the fact that there was no software or device installed on the machine to prevent the type of snooping involved.  This reasoning basically can be traced to the premise that “the subject computer is the employer’s computer”.  This reasoning is starkly in contrast to the underlying logic in the recent New Jersey decision holding that employee communications with its attorney on a work issued computer is subject to the attorney client privilege.  Certainly, in the New Jersey case, that court believed that privacy and privilege were alive and well in the world of work issued computers and spyware.

The Klapper court could have stopped there, but instead launched into a pontification of the state of online privacy, which hopefully will be deemed dicta (The part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.)

The opinion opens with the following:

In this day of wide dissemination of thoughts and messages through transmissions which are vulnerable to interception and readable by unintended parties, armed with software, spyware, viruses and cookies spreading capacity; the concept of internet privacy is a fallacy upon which no one should rely.

This is a widely cast musing that has little to do with the narrow issue of the case, which was whether or not the employer had notice that the personal email account was off limits.  One can only hope that this language is not relied on, since it essentially says the internet is the digital Wild West and there’s no point to drawing your curtains as anyone and everyone, by definition, will have full view into your life’s bedroom.  This is especially the case given the fact the court provides no analysis for that pronouncement.

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