Employees at Harvard University are in an uproar because administrators searched through their e-mails. They’re right to be upset. But Harvard didn’t violate any laws by combing through their communications, nor did it break any promises it had made. In fact, what the university did is what almost all employers across America have the right to do. The real outrage isn’t what happened at Harvard. It’s that what happened at Harvard can happen anywhere.
If you write a letter to a friend while at work using a company pen and then mail it using a company-owned stamp, it’s still private. (You might be accused of abuse of company time or of stealing the stamp, but the letter itself remains confidential.) Not so with e-mails. Employers typically claim employees should expect no privacy whatsoever. It’s an absurd distinction.
The Harvard story has its origin in last year’s much-reported cheating scandal, one that led to the suspension of about 70 students. The allegations of cheating were themselves controversial. Stories about the investigation leaked out last fall and, after one supposedly confidential but innocuous e-mail was made available to the press, administrators combed through the e-mail accounts of 16 resident deans, looking to see who passed on the e-mail. They didn’t ask permission and they didn’t let the deans know they were searching.
Nor did they have to. Harvard’s e-mail policy says, “Employees must have no expectation or right of privacy in anything they create, store, send, or receive on Harvard’s computers, networks or telecommunications systems.” The deans appear to be amazed by this. Welcome to the real world, deans.
Almost every employer can do what Harvard did. Check out your own employee handbook. A typical policy will include language that says something like, “The Company owns any communication sent via e-mail,” or “Management and other authorized staff have the right to access any material in your e-mail or on your computer at any time.” In truth, businesses don’t often exercise their power to read your e-mail. But they can.
And, as the Harvard mess makes clear, sometimes they do.
Communication is communication: a phone call is a Skype is a text is a letter is an e-mail. Yet some are private and some are not. And the fact that company property was involved in creating or transmitting an e-mail is a red herring, more incidental than anything else. In the real world, we don’t distinguish between business and private. At a computer communicating with clients, I might also write an e-mail to my wife on some personal matter. I don’t switch over to a different account to do so. (Indeed, even that wouldn’t help, since I likely would still be using my company’s Internet service, meaning the e-mail is still “theirs.”) Moreover, people who e-mail me don’t think about what account they are sending to. They just use the same one they always do. Yet, depending on which one they send to (a private one or a company one), their speech will be either confidential or not.
Some argue that this loss of privacy is one we should accept, something ushered in with the Internet age. But people increasingly don’t tolerate it from Facebook and other social networking sites, and they shouldn’t from their employers either.
Employers will argue that employees voluntarily consent to this loss of privacy when they take the job. That’s true, but it doesn’t have to be the case. An analogy can be found in landlord-tenant law: If you were to sign a lease that gave your landlord an unlimited right to search your apartment, your landlord still couldn’t search your apartment. That’s because states such as Massachusetts make such provisions illegal and unenforceable. A similar approach might apply to employee e-mail. The law might allow limited circumstances where employers could search e-mail — perhaps in cases of suspected illegality (which was, by the way, not the case with Harvard’s search), coupled with prior notice to the employee and a right to challenge any search.
Conditioning a job on a wholesale loss of privacy is wrong, a practice that hands too much power to employers. As some members of the ivory tower are starting to learn, it’s time to right that imbalance.Tom Keane can be reached at email@example.com.