We’ve seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work, and therefore cannot protect those emails. However, in an interesting new ruling (found via the EFF), a court found that personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.
Of course, there’s a bit more to this case that makes the facts a bit different and makes me wonder if it would apply in other circumstances. In this case, it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn’t a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense. The attorney-client privilege should be seen as one that has an incredibly high barrier. Any weakening of that privilege — such as by saying that if you email your lawyer from work, it doesn’t exist — would be troubling. But what would be more interesting is what would happen in a lawsuit where it was the employer looking at the material. If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.
In related news, however, the Supreme Court will be hearing a case that looks at whether or not your text messages are private, even if sent from company mobile phones.
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