Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees

Abstract

Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees’ fundamental right to privacy in their electronic communications. The difficulty of new technology outpacing the law’s ability to protect employees’ privacy from electronic monitoring by employers is widely acknowledged. Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process. Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely. On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology. Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications. This article describes the details of how this can be done.