Today’s Opinion: Mail confidentiality

POSTED: 05/17/11 12:15 PM

The letter by George MacGee about the privacy of work-emails (they’re not private, MacGee says) gives reason to dive a bit deeper into this subject. Did the government of St. Maarten act correctly when it dug up emails written by its dismissed head of finance Bas Roorda? And what does this mean for civil servants and employees elsewhere?
The attorney for Roorda argued in court on Friday that the government violated mail confidentiality by breaking into his client’s emails. The attorney for the government maintained that these emails were on the server of Roorda’s employer, and that the employer was entitled to do what it did.
But an article by Mr. L.F. Asscher and drs. W.A.M. Steenbruggen, both project researchers at the Institute for Information Law at the University of Amsterdam, sheds a different light on the matter.
Asscher and Steenbruggen conclude that an employer is only entitled to violate the communication confidentiality of its employers under certain circumstances.
The first condition that must be met is that the employee must be aware that a control is possible. “This means that a protocol has to be established that describes which forms of private use the employer considers unacceptable. The protocol must mention that the employer has the authority to control if there is a suspicion of abuse.”
We see here immediately a possible problem with Roorda’s situation, because most of the emails the government submitted to the court on Friday were business emails. But among them, there were also a couple of private emails that dealt with the health situation of Roorda’s father. So no matter how you look at it, the government is skating on thin ice here.
Asscher and Steenbruggen state that a control is only legal if it meets the demands of proportionality and subsidiarity. The Katter principle demands that the measure that violates the privacy the least has to be used first.
Asscher and Steenbruggen developed a pyramid that starts at the bottom with an assessment of volume, whereby the email volume for all employees is measured against the average volume. If there are no aberrations here, further control ought to be prohibited.
The next level in the pyramid looks at the type of attachments, then at the subject line and finally at the content of images (for instance porn) and language.
Asscher and Steenbruggen do not reject the right of an employer to exercise such controls. And, mind you, they only deal with private emails sent from a computer at work. They do not mention the employer’s right to access work-emails sent by their employees.
It remains a fact in the Roorda case that the government accessed private emails, while there is no email protocol in place. Maybe the reasoning will be that the goal (firing Roorda) justifies the means, but that puts the government, and any other employer for that matter, on a slippery slope.
While there is at the moment no clear legislation that protects emails one way or the other, employees will be wise to err on the side of safety when sending emails from their employers’; computers. Those funny messages could come back one day to haunt you, because once the cat is out of the bag, protesting that the emails are covered by the right to mail confidentiality won’t help much to repair a disturbed working relationship.

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