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Computer Law/Employer impersonating me on IM

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Question
This Friday my employer closed the office early since it is a holiday weekend.  I may have left my instant messenger open.  First I would like to state that I do not visit any websites at work that could be deemed inappropriate, usually just Facebook, personal email or a newspaper.

A man that I am seeing romantically sent me an instant message that I found confusing.  What he was saying didn't make sense, he referred to a conversation he had with me on Friday afternoon.  I checked my conversation history and saw a conversation that I didn't have.  The time stamp was after I left the office and while I was away from any computer where I could have accessed Yahoo IM.

The conversation started innocently but since it was from my partner there was a level of sexual innuendo.  Then my partner asked a very sexual question and the conversation ended.  I don't know who else it may have been besides my employer.

Granted, I know my employer has the right to monitor my online use, however, does this give him the right to impersonate me in a personal instant messenger exchange?  And this was a conversation that was sexual in nature.  I'm horribly embarrassed and I'm concerned that I may lose my job because of this exchange my employer may have had with my partner. Is what he did legal?

Answer
Sarah,

Most states do not afford an employee an expectation of privacy with respect to computers owned by his/her employer.

A recent Massachusetts Superior Court decision, Falmouth Firefighters Union v. Town of Falmout, provides some guidance.  For a two year period, the town of Falmouth, Massachusetts, used Google Gmail for its email.  Falmouth entered into a contract with Google for use of Gmail, and the town purchased the domain names used for the email accounts.  Each town employee was given a Gmail address and was responsible for managing the email sent to his or her address.  Although Falmouth’s system did not save any emails on any computer, server, or disc, it was the administrator of the email accounts.  The Gmail accounts were widely used by Falmouth employees for personal communications.

Falmouth published an email policy stating that the town maintained the ability to access any messages on or transmitted over the email system.  “Because of this fact,” the policy stated, “employees should not assume that such messages are confidential or that access by the employer or its designated representatives will not occur.”  Although there was a dispute over whether this policy was subject to collective bargaining between the town and the union representing Falmouth employees, it was clear that employees were never told that their emails were confidential.

The emails to and from the account of a Falmouth firefighter were reviewed and copied during the course of investigating a charge of sexual harassment brought against the town by a former employee.  Some of these emails contained highly personal, intimate, and embarrassing emails.  The firefighter sued, claiming that Falmouth had invaded his privacy in violation of the Massachusetts Privacy Act, which provides that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.”  To prevail, a plaintiff must show an expectation of privacy and an unreasonable and either serious or substantial interference with that privacy.

In a case of first impression, the Court found that the firefighter had no legitimate expectation of privacy in the emails and, therefore, no invasion of privacy.  In a very interesting analysis, the Court did not reach the issue of whether the town’s email policy was properly implemented or even relevant.  Rather, and importantly, the Court found that the firefighter “did not have a reasonable expectation of privacy in the emails he voluntarily sent over the Town’s email system absent any assurances that such communications were private or confidential.”  

As a result, your IMs are probably not confidential, but it is possible your employer's actions of "impersonating" you overstepped these bounds.  I would suggest contacting a local Massachusetts employment lawyer to discuss your situation.

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Dan Pepper

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I can answer questions regarding all forms of Internet, technology, and multimedia law. Specific areas may include: website terms and conditions, privacy policies, copyright, trademark, domain name disputes, software and technology licensing, and website and software development agreements. More information can be found at informationlaw.com.

Experience

I've practiced law since 1994, representing dozens of ecommerce, Internet, and software companies.

Organizations
NJ State Bar Association PA State Bar Association American Bar Association American Corporate Counsel Association Internet & Computer Law Committee of the New Jersey State Bar Association Somerset County Business Partnership Philadelphia Volunteer Lawyers for the Arts National Academy of Television Arts & Sciences Licensing Executives Society Free Speech Coalition Board of Advisors, Stevens Institute of Technology Communications

Education/Credentials
BA, Political Science; JD.

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Oracle Corporation, BEA Systems

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