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The Next E-Mail You Open Could Get You Fired A spate of dismissals over naughty Net messages has raised the stakes in the privacy debate Who, exactly, owns the messages you send and receive in cyberspace? The answer may be the company you work for. Employers in recent months have been cracking down on workers who use company e-mail to distribute dirty jokes, sexually explicit pictures, or other potentially offensive cybermaterial. What's more, a California court earlier this year ruled that a man who repeatedly e-mailed employees of a large company in effect trespassed on that company's cyberspace, bolstering corporate claims to cyberspace ownership. What does all this mean for cube dwellers? The law remains a work in progress, but the bottom line is you can be fired for forwarding that off-color joke or sharing your naughty pics of Pamela Anderson Lee. Not only that, friends who receive the e-mail could very well have their wrists slapped, too. MEATLOAF AGAIN! On Nov. 30, The New York Times Co. fired 23 employees at its Norfolk (Va.) administrative center. The workers were accused of contributing to a hostile work environment because they repeatedly, over the course of several weeks, traded unsavory "meatloaf": batches of unsolicted personal e-mail that in this case contained dirty jokes and nude pictures. In addition, The Times reprimanded several more employees who had simply received the offensive e-mail and then deleted it. Those workers were punished for failing to alert management to the offending e-mail, itself a violation of company policy. Times spokeswoman Nancy Neilsen said the company has to walk a fine line between respecting employee privacy and preventing a work environment from becoming hostile. "All of us receive some sort of junk mail from the outside world. There's nothing we can do about that," Neilsen says. "This went beyond a dirty joke. This wasn't just one day's incident." It's difficult to quantify the number of corporate dismissals that can be attributed to e-mail- or Internet-policy abuses, but everyone agrees they're becoming more common as employers rush to avoid being accused of fostering a hostile workplace. And there's plenty of anecdotal evidence that companies are paying more attention. In the past year, Xerox fired 40 workers and investment firm Edward Jones & Co. fired 19 for violating company Internet and e-mail policies. First Union Corp. fired seven employees last summer. In each case, the employees downloaded sexually explicit material from the Web or forwarded offensive e-mails. So far, workers who violate policy by running virtual errands on office time --like surfing for the latest from Shania Twain on CDnow.com -- seem to be immune from corporate crackdowns. Several companies, including Bloomberg, have tried to preempt the e-mail problem by installing filtering systems that prevent offensive language from being delivered. "It's essentially a protection for our clients. Electronic communications are now subject to subpeona in court," says Bloomberg spokeswoman Chris Taylor. DRAWING THE LINE. Several states, including California, Illinois, and Massachusetts, are grappling with legislation to limit an employer's ability to read a worker's e-mail without his or her knowledge or without good cause. The issue has pitted privacy advocates against companies that are fearful that if they don't clamp down on sexually explicit or racist exchanges, they could could be accused of fostering a hostile work environment. The question is: Where to draw the line? "People have argued that employers own the computers, it's their workplace, and they're paying you, and you have no privacy. But there's obviously something about that argument that's not right. There have to be some acceptable privacy rights," says Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, D.C.
Part of the focus on e-mail is that it's easy to track -- something to remember when you have the urge to be brutally candid or vent your anger. The stakes can be huge: Witness the embarrassing display of Bill Gates' virtual correspondence during Microsoft's antitrust trial. "[E-mail] is stored on the employer's server as well as on the employee's site. So you have this document trail that makes court litigation more interesting," says Diane Cabell, a cyberlawyer and fellow at Harvard Law School's Berkman Center for Internet & Society. The Times, like many companies, doesn't monitor employee e-mail except in response to a specific complaint, which is what ultimately led to the Nov. 30 firings. The company only a few months earlier had reminded workers in writing of its policy, which prohibits distribution of "inappropriate and offensive" material through e-mail. Thanks to its well-publicized policy, The Times appears immune to any legal claim that it violated employees' right to free speech, cyberlawyers say. But what happens when an e-mail isn't sexually or racially offensive, but galling to the corporation itself? The courts are grappling with that question now in what is being watched as a potentially groundbreaking case. In 1996, Intel fired Kourosh Kenneth Hamidi, an engineer. Soon after, Hamidi founded FACE Intel, a Web-based advocacy group critical of Intel's personnel practices. As part of his protest against being fired, Hamidi e-mailed his gripes to Intel employees, some of whom were affliated with his informal group. The e-mails continued for three years. INJURY TO INTEL. After trying unsuccessfully to block Hamidi's virtual diatribes, Intel sued. In April, Sacramento County Superior Court Judge John Lewis found Hamidi guilty of trespassing on Intel property and ordered him to stop sending his e-mail missives. "Intel has been injured by diminished employee productivity and in devoting company resources to blocking efforts and to addressing employees about Hamidi's e-mails," Lewis wrote. Hamidi is appealing the ruling. He argues that his rights to free speech in an open forum -- cyberspace -- were being trampled. Meanwhile, he continues to get his message through to Intel workers via so-called "snail mail" -- hand-delivering printed versions of his would-be electronic messages. Michael A. Jacobs, an attorney for Intel, says although courts have ruled that unsolicited commercial e-mail -- spam -- can legally be blocked, this is the first time the courts have considered limits on batched noncommercial e-mail -- meatloaf. "He doesn't have a right to propogate his message through Intel's system any more than he has a right to enter Intel's premises with a bullhorn," Jacobs says. Other cyberlawyers disagree. "We don't think cyberspace is a territory that can be divided into discreet segments. There are no geographical spaces in cyberspace," says Cabell of the Berkman Center. "Cyberspace is part of the public common." Until the courts decide where ownership of cyberspace begins and ends, workers beware. By Lorraine Woellert in Washington EDITED BY DOUGLAS HARBRECHT _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
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