Employee Monitoring: As Technology Advances Yet the Electronic Communications Privacy Act Stays in the Past

Abstract

Since the Electronic Communications Privacy Act of 1986 was enacted, the United States has endured an evolution of technology. While progressive at its inception, the ECPA has since been met with a tumultuous response from scholars, courts, and others trying to understand its purpose and application regarding privacy rights and the monitoring of communications. Specifically, since the COVID-19 pandemic, the ECPA has remained at the forefront of debate with respect to employee monitoring and surveillance practices. This article provides an overview of the ECPA and explains why today’s technological advancements have surpassed the protections afforded by the Act, leaving employees at risk and employers with significant discretion to implement their desired monitoring practices. While initially intended to extend privacy protections for U.S. citizens, the Act carved out various exceptions for which monitoring is permitted, including most business-related purposes. In addition, this article discusses the approaches and legislation that several states have proposed to combat the ambiguities of the ECPA and highlights the various ways the federal government could amend the ECPA to resolve such challenges and protect the privacy rights of employees in U.S. companies.