Exceptions to Federal Wiretap Statutes

Employers have two exceptions to liability under the federal wiretap statute. One is known as the "business extension exemption." Under this exception, an employer may monitor its employees' communications if the "interception device" is furnished by the telephone company in the ordinary course of business. In a typical "interception case," an employer monitors its employees' telephone conversations to evaluate business-related matters such as efficiency, productivity and client service. For example, in Simmons v. Southwestern Bell Telephone Co., an employee alleged that his private conversations were being monitored. The U.S. Court of Appeals for the Tenth Circuit in 1979 noted that monitoring was done both for quality control purposes and to prevent the use of monitored lines for personal calls. The court also noted that the company had provided a separate non-monitored phone line for personal calls. The court concluded that the company's monitoring activities were reasonable and in the ordinary course of business, and thus covered under the business extension exception. A second exception, known as the "service provider exemption," came about as a result of the Electronic Communications Privacy Act (ECPA), which amended the federal wiretap statute to include the interception of electronic communications, including e-mail. Under the "service provider exemption," a provider of communications services may access stored communications, including e-mail messages. In some cases, courts have used the "service provider exemption" to find that any company furnishing computer hardware and software may access its employees' e-mail files. For example, in Bohach v. City of Reno, a federal court in 1996 rejected privacy claims under the ECPA raised by two, police officers in Reno, Nevada. In this case, Officer John Bohach sent messages to other members of the department over the department's "Alphapage" messaging system. Several months later, faced with an internal affairs investigation based on the contents of those messages, Bohach and another officer filed suit, claiming that the department's accessing and retrieving the months-old messages violated, among other things, the federal wiretap statutes. The court reasoned that because the nature of the "Alphapage" messages were essentially e-mail, the officers could not reasonably have believed them to be private. In addition, the court pointed to a department order informing employees that their messages would be "logged on the network" and that sending certain types of messages were prohibited. The court found that the city was a "service provider" as defined under the ECPA, and was "free to access the stored message as it pleased." Therefore, the court found that the city had not violated the ECPA.