Federal Laws Applicable to Electronic Communications and Data
In addition to privacy laws, federal electronic communication laws may also be implicated by an employer’s search or review of employees’ use of technology. These laws include the Electronic Communications Privacy Act, [18 U.S.C. § 2510], et seq. the Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA).
The Electronic Communications Privacy Act (ECPA or the “Wiretap Act”)
The federal Wiretap Act prohibits the unlawful “interception” of an electronic communication contemporaneously with the communication being made. As such, employers that monitor and intercept employee’s online communications through social media or other online sources could, depending on the circumstances, be liable under the Act. Most employers do not, however, monitor employee communications in real time as they are occurring. If there is no real-time, contemporaneous “interception” of an electronic communication, the Wiretap Act most likely does not apply.
The Stored Communications Act (SCA) [18 U.S.C. § 2701, et seq.]
The SCA prohibits the knowing or intentional unauthorized access to “a facility through which an electronic communication service is provided.” [18 U.S.C. §§ 2701, 2707]. This includes unauthorized access to a password- protected email account or social networking site. Key exceptions exist, however, if the person accessing the communication is the provider of the service, a user of the service and the communication is from or intended for that user, or has been granted access to the site by an authorized user. [18 U.S.C. § 2701(c)(2)].
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