Emails and other electronic communications at work are often not only part of the job description, they are also hard to prevent even when they are not job related. While emails and other electronic communications at work should be strictly work related, it is all too common for employees to send and receive emails regarding personal matters. For employers, it may be tempting to try to access the personal communications of their employees. However, would it expose the employer to criminal or civil liability in doing so?
The Texas Legislature recognizes that our lives are increasingly lived digitally. Smart phones, iPads, Facebook (and similar social media) are everywhere. The Legislature has taken steps to protect our private lives from improper use and unauthorized access. Lawmakers have passed laws addressing the improper access or interception of certain communications, and has imposed severe criminal and civil penalties for these offenses.
The intentional acquisition of someone else’s electronically stored communications without their consent may constitute a violation of Texas Penal Code if the person intentionally intercepts, accesses, procures, or uses the contents of another’s communication. This offense is punishable by up to twenty years in prison and up to a $10,000 fine. A violation of the Texas Penal Code also occurs when a person obtains, alters, or prevents access to a wire or electronic communication while the electronic communication is in electronic storage; by either intentionally obtaining access without authorization, or intentionally exceeding an authorization for access. This offense carries punishment of up to 1 year in jail and a fine of up to $2,000. If this offense is committed to obtain a benefit or to harm another, punishment ranges up to 2 years and a fine of up to $10,000.
In addition to the criminal consequences, any party to the intercepted or improperly obtained communication is entitled to statutory damages of $10,000 per occurrence (each email); all actual damages in excess of $10,000; punitive damages determined by the jury; attorney’s fees and costs.
For example, assume an employer suspects one of its employees is divulging confidential company business through the use of the employee’s private email, or on his Facebook page which has several hundred “friends.” The employer knows the password to the employee’s company email address and with a little ingenuity, figures out the password for the employee’s private email or Facebook account. The employer then accesses the information and prints out the employee’s private electronically stored communications. The employer hands this electronically stored information over to the employer’s attorney for use against the employee. Use of that electronically stored information against the employee could expose the employer to both criminal and civil liability. The employee and his “friends” may each have a $10,000.00 claim.
It is important to consult a lawyer if you suspect an employee (spouse or competitor) may be acting to your detriment. Doing your own detective work could put you at risk for civil and criminal liability.