expectation of privacy in the information. It is less clear, however, whether individuals might claim some reasonable expectation of privacy in social media sites with some privacy settings, such as Facebook, which allows users to limit access to the site to only individuals that have been approved by the user. In a case involving a restricted MySpace chat room used by employees, the court declined to recognize an invasion of privacy claim where a supervisor accessed a restricted site using a password given by an employee participating in the site. [See Pietrylo v. Hillstone Restaurant Group , No. 06-5754, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009)]. However, the employer was still found to have violated the Stored Communications Act. In order to establish that employees have no reasonable expectation of privacy in the activity or technology at issue, employer’s policies should clearly state that the resources provided to employees are provided for the benefit of the business and that employees do not have any expectation of privacy in the specific conduct. The policy should also reserve the right to monitor employee’s email and other uses of its own technology resources. With these policies in place, employers are much less vulnerable to an invasion of privacy claim. State Wiretapping Laws. Minnesota statutory law prohibits the interception and disclosure of wire, electronic, or oral communications. Minn. Stat. § 626A.02, Subd. 1. Any interception of these forms of communication will violate the law unless an exemption applies. However, an exemption applies if one of the parties to the communication has given prior consent to such interception. Minn. Stat. § 626A.02, Subd. 2(d). To assert this exemption to Minnesota’s wiretapping law, employers that wish to monitor employee communications with outside parties must be able to demonstrate that the employee in question consented to the monitoring of those communications. To do so, employers should, at a minimum, maintain policies that explicitly state that employees have no expectation of privacy in communications using employer-provided communication technologies. Employers should also document the employees’ written consent in the form of an acknowledgement that the
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