Standing Committee on Government Lawyers
June 2002 Vol. 3, No. 4
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Just between you and me? privacy and electonic messages
* Someone you should know: Paige Reed
* Attorney General issues opinions
* In-sites
Just between you and me?--
privacy and electronic messages
By Tambra Cain, Carbondale*
"Hey Sue! Wanna do lunch Thursday?" ... "Mom, we will be home this weekend, please give me a call." ... "Bob, did you hear that stupid joke Mr. Boss told at the meeting today?" ... "Can we reschedule that top-secret information meeting on our new product, XYZ?"
Would you leave these notes laying around on your desk, or taped to your office door for just anyone to read? Probably not, but you would almost certainly e-mail them without a second thought about privacy.
Electronically transmitted messages, commonly known as e-mail, have become widely used both in personal and professional contexts. It is a convenient, inexpensive, and easy-to-use method of communication. But with this growing form of simple communication comes a new set of privacy problems.
What privacy problems could there be? After all, you use a password, right? But passwords provide only local protection. This means that when you are at the computer where you access your e-mail, others cannot read e-mails or access your e-mail program without your user-specific password. Once you write your e-mail and hit the send button, where does it go? Well, the e-mail then goes to the "server" for your e-mail/internet provider. From there it goes out into cyberspace to another "server," only this one is for the recipient. It is at this point that security issues arise.
Copies of old e-mails are kept on servers for a set time. The administrator, or person in charge of running the e-mail program and the server, has access to any data stored on these servers, including your e-mail messages. They keep these e-mail messages for a variety of reasons: to retrieve an accidentally deleted message or to provide technical assistance to the users of an account. Surely these unseen administrators cannot just pull up my e-mail and read them; there must be a law against it? Nope! Well, not specifically a law against reading other people's e-mail. Congress has afforded some protection to e-mail users though the Electronic Communications Privacy Act (ECPA) of 1986, which provides "any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."1 The ECPA goes on to further prohibit the use of such illegally gained information as evidence. The terms of the ECPA would tend to lead a reader to believe that such interception is absolutely forbidden. This is not so.
The ECPA leaves room for employers to confiscate e-mail messages when they have the consent of at least one party:
"It shall not be unlawful for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." (Emphasis added)2
Consent to e-mail monitoring can be established by the employer initiating a policy granting permission to monitor all e-mail and having all employees sign the policy as a condition for employment or by making such consent a prerequisite for granting an employee e-mail access. Both employees who use company e-mail and employers who provide such e-mail should be aware of the policies that control the use of company provided e-mail services.
There also may be a narrow exception allowing employers access to private e-mail messages in order to protect their business rights. The ECPA provides:
"It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is." (Emphasis added)3
While this portion of the ECPA appears to be aimed more toward the actual e-mail provider, it could conceivably be extended to employers who provide e-mail service to their employees. The fact that employers often provide and operate their own e-mail servers furthers this argument.
Another claim against employers monitoring workplace e-mail is the 4th Amendment. The 4th Amendment to the U.S. Constitution states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
At the time the 4th Amendment was authored, e-mail communication was unforeseeable. But so was telephonic communications, for which the coverage of the 4th Amendment has been extended. In Katz v. United States4, the Supreme Court cemented the now commonly accepted doctrine that a subjective expectation of privacy triggers the protection of the 4th Amendment from unreasonable searches and seizures.
Do users of employment-based and other e-mail systems have a subjective expectation of privacy? This can only be determined on an individual basis. However, it can certainly be argued that when a person purports to protect an e-mail message with the use of a password, they simply assume their message will be kept private.
With the ECPA and the 4th Amendment in mind, where does that leave employees seeking to protect their private communications and employers who want to keep tabs on their employees? Courts have been reluctant to extend widespread protection to employer-provided e-mail services. The District Court for the Eastern District of Pennsylvania held in Smyth v. Pillsbury Company5 that "the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments." The view expressed by this court would seem to extend the exemption that the ECPA grants to include any activity that might be harmful to the company's interests. This is a very broad exception and employees should keep this in mind whenever using employer-provided e-mail. The California Court of Appeals in Bourke v. Nissan6, an unpublished decision, found that employees did not have a reasonable expectation of privacy. In that case, the employer had the employees sign a form giving them notice of the policy.
So what can employees and employers do to protect themselves? Employers can provide an informed consent form for employees to sign before allowing them the use of company e-mail. This form will give the employer the requisite consent of at least one part that the ECPA requires to prevent violation and provide notice to circumvent the reasonable expectation of privacy that triggers 4th Amendment protection. Employees can limit their use of company provided e-mail to company business. Employees should not send e-mails that they expect to be private, send harassing or obscene messages, send e-mails with disparaging or insulting remarks about co-workers or supervisors and finally, employees should not send sensitive or confidential information via e-mail.
By remembering that e-mail messages can be lawfully intercepted under certain circumstances and by using common sense in writing and sending e-mails on employer provided e-mail systems, many problems arising from the use of such e-mail can be avoided.
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* Tambra Cain is a 2nd year student at the Southern Illinois University School of Law.
1. Electronic Communications Privacy Act of 1986, 18 USC 2510 et seq.
2. Electronic Communications Privacy Act of 1986, 18 USC 2511(2)(d).
3. Electronic Communications Privacy Act of 1986, 18 USC 2511(2)(a)(i).
4. Katz v. United States, 389 U.S. 347 (1967).
5. Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (ED Penn. 1996).
6. Bourke v. Nissan, unpublished opinion (No. B068705)
Someone you should know: Paige Reed
By Judith Hahn and Polly Hampton, Carbondale
Describing the balancing act between career and family as challenging is an understatement. Paige Reed, City Attorney for the City of Carbondale, sums up her philosophy in one word: perspective. If a parent believes in her work in the community, children learn from that, making time away from them less of a burden. Paige would know, as she is the mother of three-month-old twins, a two-year-old daughter, and a 14-year-old stepson.
Paige's attitude is that success at work and success at home don't have to be mutually exclusive. When you are successful and fulfilled in your work, your attitude at home is improved, allowing you to give more to your children.
Paige Reed graduated from Southern Illinois University School of Law in Carbondale in 1994, after receiving her B.S. in Administration of Justice from SIU. Paige was hired as the Assistant City Attorney for the City of Carbondale in May 1995. She became the City Attorney in April 1997.
She is a southern Illinois native, having grown up in the small town of DuQuoin. She became interested in working for the FBI during her undergraduate studies and was in the final stages of interviewing with the agency when she was offered the position with the City of Carbondale. The choice of remaining in southern Illinois outweighed her desire to relocate and join the Bureau. Thus, her career in government law began.
Some say variety is the spice of life. Criminal law, civil law, labor law, employment law, contract law, real estate law, zoning, legislation, and administration are all included in Paige's weekly workload. As the City Attorney, along with the Assistant City Attorney, she is responsible for prosecuting city ordinance violations. She provides litigation support and assistance for civil liability and eminent domain actions filed on behalf of, or against the city. She also assists in negotiations with four labor unions that represent the city's employees. She is the legal counsel for management on personnel and employment issues. She drafts and reviews contracts, leases, licenses and general operation documents for the city. Paige also prepares all of the city's real estate transaction documents. She serves as the chief legal advisor to the City Council, City Manager and staff, including advising on proposed changes and additions to the city's code.
"I used to tell potential student interns that the only type of law you won't see in this job is family law and trusts and estates," Paige noted. However, she was corrected when she was called upon to advise the city's police chief on an issue involving an order of protection and its effect on a child custody arrangement. Paige has no complaints about the diversity and need to stay abreast on the vast array of topics saying, "It keeps me sharp." And that she is.
For anyone who thinks that being legal counsel for a city of 27,000 in the southern part of the state may be mundane, think again. Paige recently filed an injunction on behalf of the city against the State of Illinois after a dispute over the 2000 census figures arose, a disagreement that could detrimentally affect Carbondale. If the dispute is not settled, it could reach the Illinois Supreme Court as a case of first impression. On the other end of the spectrum, Paige also has had to apply the city's adult use ordinance to deal with an "adult" Internet site operating in Carbondale.
Paige says she has no regrets after choosing the City Attorney's office. She speaks highly of her experiences with the city, and says that she enjoys advising city officials on legal issues that affect the community. The priority she places on community involvement is also evidenced by her service on the Board of Directors for both the Carbondale Crime Stoppers and for the D.A.R.E. Program. Paige and her husband, Dan, live in Carbondale with their daughters Payton, Ashton, and Morgan, their son Matt and their yellow Labrador, Copper. Paige has made a difference to the community of Carbondale. She is someone you should know.
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*Judith Hahn and Polly Hampton are 1st year students at the Southern Illinois University School of Law.
Attorney General issues opinions
By Lynn Patton, Springfield
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2000)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 02-001 through 02-005 and informal opinions I-02-001 through I-02-011 that may be of interest to the government bar.
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield Office at (217) 782-9070. Copies official opinions may also be found on the Internet at http://www.ag.state.il.us/ opinions/opinions.html.
Opinion No. 02-002, issued March 5, 2002: sole source procurement of accounting services. The Department of the Lottery's contract for professional accountant services for conducting and observing Lottery drawings should have been based upon a competitive request for proposals, rather than as a sole source procurement, since there appears to be more than one economically feasible supplier of the services. 30 ILCS 500/20-35, 35-30 and 35-35 (West 2000); 44 Ill. Admin. Code 1.2035 (2001).
Opinion No. 02-003, issued March 5, 2002: residency requirement for veterans' educational benefits. The provision in section 30-14.2 of the School Code which conditions distribution of scholarships to MIA/POWs, disabled veterans and their dependents, on Illinois residency at the time the veteran entered military service violates the Federal constitutional right to equal protection. 105 ILCS 5/30-14.2 (West 2000).
Opinion No. 02-004, issued March 5, 2002: indemnification of sheriff for injuries arising out of crime prevention programs. Crime prevention is among the statutory duties of the sheriff. Therefore, the sheriff and his or her deputies are entitled to indemnity under section 5-1002 of the Counties Code in the event any claim is brought against them in connection with crime prevention programs conducted by the sheriff. 55 ILCS 5/5-1002, 3-6021 (West 2000).
Informal Opinion No. I-02-001, issued January 4, 2002: compensation for special assistant state's attorney. A special assistant state's attorney cannot properly be compensated for his or her services directly by fees charged to respondents held in contempt of court for failure to pay child support. Such an arrangement not only fails to comply with the compensation requirements of section 3-9008 of the Counties Code, but also violates article VI, section 14 of the Illinois Constitution of 1970. 55 ILCS 5/3-9008, 3-9009; 50 ILCS 315/2 (West 2000); Ill. Const. 1970, art. VI, sec. 14.
Informal Opinion No. I-02-002, issued January 8, 2002: county juvenile justice councils subject to the Open Meetings Act. (1) A gathering of an informal, ad hoc group of public officials for the purpose of discussing the establishment of a county juvenile justice council is not a meeting of a public body within the provisions of the Open Meetings Act. (2) County juvenile justice councils are administrative, advisory or subsidiary bodies of the county. As such, county juvenile justice councils are public bodies whose meetings must be conducted in accordance with the provisions of the Open Meetings Act. 5 ILCS 120/1.02 (West 2000), as amended by Public Act 92-468, effective August 22, 2001; 705 ILCS 405/6-12 (West 2000).
Informal Opinion No. I-02-006, issued March 6, 2002: county clerk's issuance of a marriage license to himself. An officer charged by statute with performing duties which are purely ministerial, such as the issuance of a marriage license upon proof readily ascertainable facts, is not disqualified from performing those duties based upon a personal interest in the subject matter. 750 ILCS 5/203 (West 2000).
Informal Opinion No. I-02-007, issued March 7, 2002: personnel policy, payroll accounting and internal control of county official's offices. County officers whose selection and compensation is provided for by statute or by the constitution are not county employees subject to a personnel policy adopted by the county board. The employees of those officers having, by statute, internal control over the operations of their offices are not subject to county personnel rules, absent the consent of each employing officer. The personnel policies of the circuit clerk are subject to the control of the court, not the county. The selection, qualification and discipline of the public defender and his assistants and clerks are subject to the control of the court, but the compensation of his assistants and clerks are subject to county board policy. The county board may implement a payroll accounting system with respect to the employees of county officers, to the extent that the system does not impermissibly require that such officers adopt county personnel policies. 55 ILCS 5/5-1005(16); 3-4004, 3-4007, 3-4008 (West 2000).
Informal Opinion No. I-02-008, issued March 19, 2002: automobile insurance coverage for State university spring break trip. Consistent with the long-standing interpretation of self-insurance coverage for automobile liability provided through the Department of Central Management Services for state-owned vehicles, no coverage is available for a state university spring break trip involving a small group of fee-paying students and university staff. 20 ILCS 405/405-105 (West 2000).
Informal Opinion No. I-02-010, issued March 27, 2002: sale and consumption of alcoholic beverages at park district golf course. Section 6-15 of the Liquor Control Act of 1934 authorizes the sale or delivery of alcoholic liquors in any building owned by a park district organized under the Park District Code. The popularly understood meaning of the term "building" is a structure. It follows, therefore, that alcoholic liquors may be sold or delivered in a golf course clubhouse, a clubhouse banquet facility or a halfway house but not a motorized golf cart. Since the enactment of Public Act 82-917, effective January 1, 1983, park districts have been required to obtain a local liquor license prior to selling alcoholic liquors in park district-owned buildings. Whether consumption of alcoholic liquors is limited to the buildings where alcoholic liquors are sold may depend upon local regulations. 70 ILCS 5/8-19 (West 2000); 235 ILCS 5/6-15 (West 2000), as amended by Public Act 92-512, effective January 1, 2002.
By Chuck Gunnarson, Springfield
Many administrative law judges have found Morell E. Mullins' book, Manual For Administrative Law Judges, to be a useful resource in their practices. Now, a 2001 Interim Edition is available on the Web to update the third edition of the work, which was published nearly ten years ago. Go to http://www.ualr.edu/~malj/ to download this update to your computer.
Are you litigating a criminal case before the United States Seventh Circuit Court of Appeals and need jury instructions? At http://www.ca7.uscourts.gov/pjury.pdf you can find criminal jury instructions specific to the Seventh Circuit. While the Seventh Circuit does not have pattern civil jury instructions, there is a website containing useful information on pattern civil jury instructions from individual judges in the Federal District Court for the Northern District of Illinois, as well as from the Fifth, Eighth, Ninth and Eleventh Circuits. Go to http://www.lb7.uscourts.gov/reflinks.htm#fedpatji to view what this site has to offer.
The Illinois Supreme Court has made it easier to track the dispositions of Petitions for Leave to Appeal ("PLA"). Go to http://www.state.il.us/court/SupremeCourt/PLA_Ann_default.shtml for information on the matter you are following. Also at this site, you can sign up to receive e-mail notices on the announcements of new PLA decisions.
Do you have a client or loved one that may be owed a pension benefit from a now-defunct company or a company that ended its defined benefit pension plan? The Pension Benefit Guaranty Corporation ("PBGC") is looking for individuals who may be owed such benefits. PBGC's web address is http://www.pbgc.gov/search .
Is your mortgage company making the property tax payment to the correct account for your property in Cook County? To check to see if payments are being made to the correct property and to find out your property tax payment status go to http://www.cookcountytreasurer.com.